HEARING EXAMINERíS RECOMMENDED FINDINGS OF
FACT, CONCLUSIONS OF LAW, AND ORDER

Case Nos. 19992224 and 20002185

These complaints came before the Madison Equal
Opportunities Commission Hearing Examiner, Clifford E. Blackwell III, for a
consolidated public hearing on the merits of the complaints on July 16, 17, and
18, 2001. The Complainant, Ollie Dail Carver-Thomas, appeared in person and by
her attorneys, Jeff Scott Olson and Jill Packman of the Jeff Scott Olson Law
Office. The Respondent appeared by its corporate representative, Amy Winkler,
and by its attorneys Jack D. Walker and Dana Erlandsen of Melli, Walker, Pease
and Ruhly, S.C.

After review of the record in this matter, the
Hearing Examiner now issues his Recommended Findings of Fact, Conclusions of Law
and Order as follows:

PROPOSED FINDINGS OF FACT

Genesis is a
corporation that provides alcohol and other drug abuse, mental health and
reintegration services primarily to county-funded clients that come to Genesis
through the Department of Corrections. Genesis has two hundred fifteen (215)
employees statewide. During 1998 and 1999, the majority of Genesisí employees
were African American; Genesis had approximately fifty-five percent (55%)

Genesisí first
program in Madison was an outpatient program called Madison Phases, which
started in 1997 and ended in June 1998.

The Complainant,
Ollie Dail Carver-Thomas, is an African American woman who was employed by
Genesis at its Madison office on two separate occasions.

During her employment
at Genesis, the Complainant was also employed by Thomas & Associates, her
husbandís business, helping him with phone answering or doing pre-intake or
intake. She had no written partnership agreement with him, but she had an oral
partnership agreement with him that she would come down to the office and help
out whenever she could. He sets what she will be paid and she never questions
that.

The Complainant was
hired as a Drug and Alcohol Counselor by a panel of three (3) Genesis
managers, including Dan Langlois, Darren Matavka and Robert Lujan, for
Genesisí Phases program, where she worked from October 30, 1997 through the
end of Genesisí contract on June 30, 1998. Between the Complainant and
Langlois, they served a population of about twenty-five (25) clients.

Langlois, a White
man, supervised the Complainant and three (3) other employees at Madison
Phases. In the Madison Phases program, two (2) of the four (4) employees
Langlois supervised were African American, including the Complainant. There
were no complaints of harassment by the Complainant or any of the other
employees.

Langlois had
previously supervised African American employees at two (2) other employers,
Alpine Management and Tellurian U-Can, and never had any complaints of racial
harassment.

The Complainant
testified that her relationship with Langlois at Madison Phases was a good
working relationship.

When Genesis got a
second contract, Langlois phoned the Complainant and said it was time to come
back to work. Langlois specifically recruited the Complainant to work for the
Madison Day Reporting Center (DRC).

In fall 1998, Genesis
opened the DRC, which employed five (5) to six (6) full-time employees and a
few part-time people. There was a program manager (Langlois), four (4)
full-time Day Reporting Center coordinators (the Complainant, Stephanie
Anderson, Julie Frohling and later Derek Kraemer and Scott Caldwell), a
full-time security supervisor (Herbert Bent) and some sort of a full-time
office assistant. The Complainant and Herb Bent were African American; the
other employees were White.

The Complainant was
Lead Coordinator at the Day Reporting Center, but her printed job description
was simply a Coordinator job description. The Complainant had specific duties
that were not printed in the job description, such as overseeing the new
coordinators and doing training with them, administering drug tests such as
sweat patches, breathalyzer tests, and urinalyses, and working with Department
of Corrections committees.

The Complainant was
part of the panel that hired the other coordinators for the DRC, Stephanie
Anderson and Julie Frohling; Anderson and Frohling were both White. (Neither
Anderson nor Frohling works at Genesis any longer.) The Complainant trained
Anderson and Frohling by familiarizing them with the Department of
Corrections, the Genesis contract and responsibilities, urinalysis, and group
facilitation. The duties of the Lead Coordinator position changed over time to
assist with management tasks.

The Day Reporting
Center served a larger client base than the old Phases program, with 75
clients instead of 25. The Complainant was given more responsibility. There
was an abundance of work, and more demands on Langlois and the Complainant.

The Complainant felt
that Langlois faulted her when the Department of Corrections got on his case,
and that he talked more negatively to her. Langlois and the Complainant agree
that he said things to her like, ďHow did you miss that?Ē

In February and March
1999, Langlois had a series of meetings with the Complainant that ended with a
confrontation on March 5.

Langlois met with the
Complainant in February 1999 to discuss her role as Lead Coordinator. The
Complainant asked why she was not given more responsibilities as Lead
Coordinator, and said she was feeling resentment and disappointment. Langlois
told the Complainant he did not believe she was ready for more
responsibilities until she was able to consistently manage her caseload and
perform her regular duties as a Coordinator. Langlois removed the duty of
conducting client orientations on Thursdays to give her more time to do case
management activities.

In a meeting on or
about February 26, 1999, Langlois and the Complainant met in a staff personís
office for about an hour and fifteen minutes. The primary topic of discussion
was the Complainantís concerns about Julie Frohling. Langlois recalls that the
Complainant said that Frohling walked around the building with her nose up in
the air like she owned the place, how Frohling didnít go to the Complainant
with concerns or questions about clients, and that Frohling did not show her
respect. The Complainant also complained about Frohling and urinalysis, and
referred to Frohling as ďSnow WhiteĒ and having ďlily-white hands.Ē

The Complainant
acknowledges that she characterized Julie as having lily-white hands when she
was complaining about doing the urinalysis testing. The Complainant says she
did not intend that to be a racial remark about Frohling, and it would be
unreasonable in her view for anyone to take that as a racial remark about
Frohling.

The February 26
meeting ended with the Complainant saying that she didnít want to talk about
this any more. Langlois asked her for a list of concerns. The Complainant said
she didnít want to give it to him at this time, and that they would discuss it
when she got back from vacation.

Later on February 26,
another coordinator, Stephanie Anderson, said she was concerned that the
Complainant was talking disrespectfully about Frohling to other staff persons.

On or about March 5,
1999, Langlois told the Complainant he wanted to meet at lunch. She said she
couldnít afford to go, and he said, ďWell, Iím buying lunch.Ē She said they
had been meeting a lot and she didnít want the meeting. He said, ďWell, I
think it would be healthy, you know, and weíll go to Jingles next door and
have lunch. ď So then they went.

Langlois wanted to
talk to the Complainant about some issues at the Day Reporting Center
concerning clients and some of the staff. He had asked the Complainant to
write down a list of the concerns. Langlois wanted to discuss that then, but
the Complainant didnít really want to. The Complainant didnít want to discuss
the concerns at all. She did talk with Langlois at lunch, and the way they
left that meeting was that on Monday, Langlois would pull all the coordinators
together and they would have a meeting.

Later that same day,
Langlois mediated a discussion between the Complainant and Frohling in an
agentís office. Langlois perceived the relationship between the Complainant
and Frohling to be eroding quickly, and hoped to get them to speak to one
another in hopes of resolving any differences so they could be more cohesive
as a team and better serve clients.

Langlois was seated
between Frohling and the Complainant. Langlois set up some ground rules,
including that each would have an opportunity to get off whatever was on their
chest. The Complainant said that she perceived that Frohling was not treating
her with respect and not respecting her authority. Frohlingís concern was that
the Complainant was saying things behind her back to other staff members, and
giving her sneers or looks and not being open to her. Each reacted to the
otherís statements. The Complainant had been becoming more upset as the
meeting continued. Eventually she stood, opened the door and left the room.

Langlois did not
attempt to block the Complainant from leaving. However, he had been standing
between the Complainant and the door, which made it very difficult for the
Complainant to leave. He followed her out of the office and went into her
office. The door was not locked when he came in. He shut the door so as not to
make a scene in front of the clients. The Complainant picked up the phone and
called her husband. Langlois asked her what the hell she was doing, and said
that her conduct was unprofessional and inappropriate. Langlois was angry, he
was yelling and swearing. The Complainant went to the door and grabbed her
coat. Langlois did not block her exit from the office, though he was standing
next to the door and the Complainant had to repeatedly tell him to ďMove!Ē

That weekend, the
Complainant wrote a complaint to Darren Matavka and Amy Winkler. She dated it
March 8, 1999, and mailed it on Tuesday, March 9.

Genesis has a policy
prohibiting harassment of employees generally, as well as prohibiting illegal
harassment. Genesis also prohibits retaliation against anyone that in good
faith makes a harassment report or assists in an investigation.

Winkler did not find
it to be a complaint of racial harassment. She never attempted to ascertain
the basis of the Complainantís concerns.

Genesisís Human
Resource Director, Amy Winkler, investigated the Complainantís complaint, with
the assistance of Diane Ellis, another Human Resources manager. She
interviewed Langlois, the Complainant and Julie Frohling. She made no effort
to identify or locate any other possible witnesses. The Complainant was not
initially available, because she was on vacation starting March 9.

In Langloisí
interview with Winkler on March 12, 1999, Langlois confirmed to Winkler that
he held a meeting to mediate between the Complainant and Frohling, and that he
did this after other staff reported to him that the Complainant was talking
poorly about Frohling behind her back. Langlois acknowledged that the meeting
did not go well, that the Complainant left upset. Langlois disputed the
Complainantís claim that he blocked the door or used profanity. Langlois said
he followed the Complainant to her office and closed the door behind him so
that clients could not hear them argue. Langlois said he called her behavior
inappropriate, and that he kept trying to talk to her about the situation, but
that she left.

In Frohlingís
interview with Winkler on March 12, 1999, Frohling also disputed the
Complainantís claim that Langlois blocked the door or used profanity in their
meeting. No one indicates that Frohling followed Langlois out of the office or
observed what occurred in the Complainantís office.

In her interview, the
Complainant mentions several specific complaints about Frohlingís conduct
(that Frohling left out a confidential file, that Frohling did not give her
and Bent phone codes, that Frohling was not bringing her paperwork to the
Complainant for signing off, that Frohling was not doing urine analyses (UAs),
and that as Lead Coordinator she needed respect from Frohling), but she made
no complaint about Stephanie Anderson, the other coordinator. She added some
more complaints about Langlois (that she wanted Genesis to solicit food
donations but he said they were not a priority, that DRC staff should have a
staff meeting that did not include Department of Corrections staff). The
Complainant elaborated on the March 5 meeting with Frohling and Langlois. She
said Frohling looked like she had been crying, and did not respond when the
Complainant asked if she was okay. Frohling said she wanted the Complainant to
apologize for not giving her as much attention as the other coordinators and
for making snide remarks about Frohling under her breath. The Complainant told
her she did not want her to feel bad, and that she has never said anything
about Frohling under her breath and that if she had something to say to
Frohling she would be direct. Frohling said what about saying ďshe should put
some gloves on those lily-white hands.Ē The Complainant said she was shocked
by that because she believed the only way Frohling could know of that comment
was if Langlois told her what Carver-Thomas said. She asked Langlois how
Frohling knew this, but Langlois did not respond except to say to listen to
Frohling. She told Frohling she thought the coordinators needed additional
training to keep the staff safe with clients. Frohling said that the
Complainant walked around looking mad at the world and that it made it hard
for Frohling to approach her. The Complainant said she was leaving the
meeting.

Winkler did not
investigate any of the matters brought up by the Complainant.

Winkler asked the
Complainant for her thoughts on how the complaint should be resolved, and the
Complainant said she wasnít sure.

From the record, it
appears that Winkler had come to a decision about how to resolve the
Complainantís complaint on March 23, 1999, even before she received the facts
from the Complainant with additional issues or concerns. She did not indicate
that she needed additional time to investigate the additional allegations
presented by the March 23, 1999 facts.

On March 23, 1999,
Winkler and Ralph Kramer met with Langlois to discuss the resolution of the
Complainantís complaint. Langlois still had not been shown a copy of the
complaint. Though Winkler and Kramer expressed doubt about Langloisí version
of events, they proceeded to assure Langlois that he would not be transferred,
disciplined or terminated as a result of the Complainantís complaint.

For his part,
Langlois wished to re-establish a good working relationship with the
Complainant and to continue his employment.

Winkler contacted the
Complainant to set up a meeting with her (Winkler), Otis Lockett and Langlois
to move forward. The Complainant expressed her concern that she did not wish
to meet with Langlois and that she was very uneasy about her ability to work
with Langlois in the future. After a couple of changes in the schedule, it was
agreed that Winkler, Lockett and the Complainant would meet on March 25, 1999,
to discuss the resolution of the complaint.

On March 25, 1999,
Winkler, Lockett and the Complainant met at the DRC offices. Winkler informed
the Complainant that neither she nor Langlois would be transferred. Winkler
also indicated Lockett would become Langloisí supervisor and would assist
Langlois in improving his managerial style and techniques. Lockett was also to
look into the additional allegations of the Complainant and to meet regularly
with the Complainant and Langlois. Winkler and Lockett demanded that the
Complainant meet with Langlois to accept Langloisí apology and to tell them if
the Complainant was going to return to work that day or leave employment with
the Respondent.

The Complainant was
extremely upset by the demands placed upon her by Winkler and Lockett. She
still did not wish to meet with Langlois and expressed doubts about her
ability to work with Langlois. She asked for an opportunity to think about her
options alone. Winkler and Lockett gave her a short period of time to do so.

The Complainant
returned to her office and after approximately fifteen (15) to thirty (30)
minutes, again met with Winkler and Lockett. The Complainant indicated that
she would reluctantly meet with Winkler, Lockett and Langlois, and that she
would remain employed with the Respondent. The Complainant also asked if she
might be able to take the remainder of the day off to reflect and compose
herself.

Langlois was brought
to the meeting room and apologized to the Complainant for the misunderstanding
over his intentions in the March 5, 1999, meeting and confrontation. He
indicated that he hoped that he and the Complainant would be able to get back
to work together. The Complainant was permitted to take the remainder of the
day off. Lockett, Langlois and the Complainant met briefly to schedule
meetings at the DRC the following week.

From the beginning of
the DRC contract, the Complainant felt isolated and the subject of
discrimination and harassment from Langlois and others. She believed that
Langlois displayed a degree of racial insensitivity to the clients and their
needs by laughing at them, calling them names such as ďlazyĒ or ďlazy oaf.Ē

The Complainant
objected to Langloisí laughing at the results of photographic identification
cards. Due to an apparent mistake in settings, the African American clients
were hardly recognizable. Langlois said the photographs looked like ďdark
spots.Ē Because the camera did not belong to the DRC, he did not permit
untrained staff to attempt to reset the camera for new photographs.

The Complainant felt
that she had too large of a caseload, but also objected when certain minor
administrative duties were reassigned to Frohling. Among the duties reassigned
to Frohling because of Langloisí perception that Frohling had good
organizational skills, were management of the petty cash fund, and setting up
the long distance phone codes and assignment of those codes to employees.

Frohling did not give
the Complainant or Herbert Bent, the only African American employees, the
phone codes that had been assigned to them. This fact became known when an
emergency arose and the Complainant was unable to contact a family member by
long distance. When Langlois became aware of the problem, he gave his code to
the Complainant until she could be given her own code. The Complainant and
Bent received their long distance codes within a few hours of the problem
being identified.

The Complainant felt
that African American clients were being assigned exclusively to the community
work van. When she raised this issue with Langlois, his response that most of
the White clients had jobs and were not eligible for the community work van
did not satisfy the Complainant.

The Complainant
believed that she was being required to sign in and sign out and to keep an
hourly log of her activities while other members of the staff were not being
so required. Such sign in, sign out and log procedures were required as part
of the contract with the Department of Corrections (DOC). Langlois told the
Complainant that as Lead Coordinator, she needed to set a good example for the
remaining staff.

Though compliance
with the sign in, sign out and logging procedures was sporadic at best, it
became better as time went on. The notable exception to this improvement was
the conduct of Frohling.

The Complainant
believed that she was not permitted to sign up for leave until Langlois and
the other coordinators were given the opportunity first. The Respondent
appears to have used a ďfirst in, first outĒ system. This systemís application
created certain problems in the office.

Over the holiday
period of 1998 to 1999, the Complainant requested time off to attend the Rose
Bowl. Langlois denied her request saying that it was a busy time and she was
needed at the facility. The Complainant later discovered that Frohling had
taken three (3) or four (4) days off during that period and had attended the
Rose Bowl. There is no indication whether Frohling or the Complainant had made
the initial request for the time off.

The Complainant
believes that she was treated unfairly when she was required to ďcoverĒ for an
employee on vacation while no one was required to ďcoverĒ her cases when she
went on vacation. Langlois stated that other employees were required to
ďcoverĒ the Complainantís cases and that he sent memos during her absence to
make sure this occurred.

During the late fall
or early winter (approximately November or December) of 1998, the Complainant
and Bent were confronted in an office by a custodian carrying an electric
drill. The custodian threatened the Complainant and Bent with the drill and
made racial slurs to both of them. The police were called and the police
investigated the incident. Langlois instructed the Complainant to complete an
Incident Report to be sent to the Milwaukee office.

At a prior job with
Lutheran Social Services, the Complainant was severely beaten by a client.
Subsequent to that incident, she suffered from occasions of anxiety, back and
body pain, and other symptoms of stress. She had a TENS Unit that assisted her
in managing her pain and discomfort.

Starting shortly
after she was hired for the Lead Coordinator position, the Complainant began
to experience a reoccurrence of her physical and emotional symptoms. The
incident with the custodian and the drill further exacerbated her symptoms.
After the March 5, 1999, incident with Langlois and the meeting on March 25,
1999, with Winkler, Lockett and Langlois, the Complainantís symptoms of stress
and recurring pain increased markedly. She began to experience crying spells,
both at work and at home, and experienced nightmares that reflected the
incidents at the DRC. These symptoms ultimately resulted in the Complainantís
taking a medical leave of absence beginning on October 8, 1999. Shortly after
beginning the medical leave, there was an exacerbation of her symptoms
followed by a slow reduction. Though the Complainant had experienced a slow
reduction in those symptoms, she still experienced them as of the time of
hearing.

Lack of investigation
and Winklerís requirement that the Complainant decide about her re-employment
left her jaundiced and expecting a continuation of the incidents that she
believed to be discriminatory or harassing.

The Complainant
continued to feel that she was the subject of discrimination and harassment by
Langlois and other members of the DRC staff. She believed that she was being
isolated and not given necessary information to perform her work. She felt
that she was being given the hardest clients to deal with and that her
caseload was greater than the other coordinators.

Lockett investigated
the Complainantís concerns about her being required to sign in and sign out,
and maintain work logs while other coordinators were not so required. Lockett
found that with the exception of Frohling, other coordinators were making
progress at such activities. The Complainant contends that logs demonstrate
that Coordinator Stephanie Anderson was also not signing in and signing out.
However, Anderson left the employment of the Respondent in late spring or
early summer 1999, and it is not clear whether the Complainant was looking at
logs prior to or subsequent to Andersonís termination.

Lockett also
investigated the Complainantís complaint that she was carrying a larger
caseload than other coordinators. Again, Lockett found that all coordinators
but Frohling were carrying about the same caseload. When Lockett spoke to
Langlois about this, other coordinators caseloads were reduced, including the
Complainantís and Frohlingís was increased.

The Complainant
asserts that her caseload was increased because of her race and her exercise
of a right protected by the Ordinance. All coordinatorsí caseloads were
increased when Coordinator Stephanie Anderson left employment with the
Respondent. There was no indication that her caseload was unequally
distributed amongst the remaining coordinators.

In August of 1999,
someone set fire to possessions of the Complainantís in the back of her car
while the car was in the Respondentís parking lot. The police were called and
subsequently investigated the incident. At the time of the incident, the
Complainant only identified the custodial from the drill incident as a
potential suspect. There is no evidence that Langlois had anything to do with
setting the fire or that he was anything but solicitous to the needs of the
Complainant at the time of the incident.

Langlois failed to
inform Lockett or the Milwaukee headquarters of the fire incident, believing
that he did not need to since the police were investigating. Langlois was
later reprimanded orally and in writing for this failure.

In September of 1999,
the Complainant found a handwritten note, including a pager number, on the
windshield of her car. She felt threatened by this note and informed Langlois
of the incident. Again, the police were called and subsequently investigated
the incident. No suspects were identified or charged.

Lockett became aware
of an otherwise unidentified incident in which Langlois was reported to have
referred to clients as ďmonkeysĒ or ďapes.Ē Langlois denied the allegation.
Lockett did not believe him. Langlois was subsequently reprimanded for this
incident.

The Complainant left
on medical leave as a result of her continued feelings of stress and
harassment on October 8, 1999. She was in regular contact with the corporate
office over the requirements for her medical leave through the end of the
year, 1999. Subsequent to that time, the Complainantís attorney entered into
discussions with the Respondent. Because of the Complainantís representation,
the Respondent did not communicate directly with the Complainant after the
beginning of 2000.

In February 2000, the
Respondent contacted the Complainantís attorney and indicated that it needed
additional medical information in order to maintain the Complainant on medical
leave since her ďFMLAĒ leave had expired. The Respondent indicated that if it
did not receive further medical information from the Complainant or the
Complainant did not return to work after proper medical authorization on or
before February 15, 2000, the Respondent would terminate the Complainantís
employment.

It is not possible to
determine whether the Complainantís attorney informed the Complainant of the
Respondentís demand. However, the Complainant neither returned to work nor
provided the Complainant with additional medical information. The Respondent
terminated the Complainantís employment as of February 17 2000, for a failure
to provide the Respondent with needed medical information. In March 2000, the
Respondent made arrangements for the Complainant to come and retrieve any
personal possessions that had been left at the DRC site.

Subsequent to his
oral and written reprimands, Langlois gave notice to the Respondent in
November of 1999 that he would terminate his employment. As a result of a
favor being done Langlois by the Respondent, Langlois did not actually
terminate his employment until March of 2000.

Frohling left
employment with the Respondent in December of 1999 or early in January of
2000.

In mid-February of
2000, the Complainantís physician and psychologist both indicated that the
Complainant had decided not to seek employment elsewhere, but to work in
connection with her husbandís office.

In early December,
1999, the Complainantís husband contacted first Langlois and then Ralph Kramer
about the possibility of his (the Complainantís husband) companyís running the
DRC contract since Langlois was going to be leaving. Under this proposal, the
Complainantís husband would charge a management fee, plus his wifeís salary,
to operate the facility. His wife would reassume her position and some of
Langloisí duties. Kramer indicated that the Complainantís husband could submit
a proposal and he would review it, but that the Respondent generally operated
its own facilities. No proposal was ever sent.

While employed by the
Respondent at the DRC, the Complainant made $25,000 per year. Once on medical
leave, her salary terminated on or about October 8, 1999. From that time until
the Respondent terminated her employment on February 17, the Complainant had
no income other than that paid to her by her husband for services she provided
at his office.

Other than applying
for a single position, the Complainant did not seek employment from other than
her husbandís office at any time since leaving employment with the Respondent.

The Complainant,
though experiencing stress and other related issues, was apparently
sufficiently well to return to work by the middle or end of December of 1999.
This is evidenced by the Complainantís husbandís interest in assuming the DRC
operations contract and indicating that the Complainant would be able to
resume her duties.

The Complainant began
receiving a paycheck from her husbandís business on or about April 8, 2000.

PROPOSED CONCLUSIONS OF LAW

The Complainant, an
African American, is a member of the protected class ďraceĒ within the meaning
of the Equal Opportunities Ordinance.

Due to her skin
color, the Complainant is a member of the protected class ďcolorĒ within the
meaning of the Equal Opportunities Ordinance.

Because of her good
faith complaint of discrimination and harassment dated March 8, 1999, and sent
to the Respondent, the Complainant has exercised a right protected by the
Ordinance and is entitled to the protections of Section 9 of the Equal
Opportunities Ordinance.

The Respondent is an
employer within the meaning of the Equal Opportunities Ordinance.

Prior to March 5,
1999, the Complainant did not experience either racial discrimination or
harassment in violation of the Equal Opportunities Ordinance while employed at
the DRC by the Respondent.

The Complainant, a
member of the protected classes race and color, was treated less favorably
than a White employee involved in the same incident as a result of the
Respondentís investigation and resolution of the Complainantís March 8, 1999
complaint. This less favorable treatment violates the Equal Opportunities
Ordinanceís protection against discrimination in the terms and conditions of
employment on the basis of race . . . or color in employment. Madison General
Ordinance 3.23 (8).

The Respondent
retaliated against the Complainant for her exercise of a right protected by
the Ordinance by coercing, intimidating, harassing or otherwise discriminating
against her for her filing of a complaint by requiring an immediate decision
of whether she wished to be retained as an employee and by failing to properly
investigate her complaint of discrimination and harassment, and by failing to
provide a resolution to her complaint that would likely prevent any
reoccurrence.

Though under stress
from the inadequate investigation and resolution of her complaint, the
Complainant was not subjected to further harassment or discrimination while in
the employment of the Respondent from March 26, 1999, through her termination
of employment on March 17, 2000.

The Complainant is
entitled to be made whole for the Respondentís discrimination/retaliation
against her.

ORDER

The Respondent shall
pay to the Complainant back pay in the amount of eight thousand nine hundred
and eight dollars ($8,908) within thirty (30) days of this order becoming
final.

The Respondent shall
pay to the Complainant prejudgment interest calculated at the flat rate of 5%
per annum on Complainantís award of back pay.

The Respondent shall
pay to the Complainant the sum of fifteen thousand dollars ($15,000) to
compensate her for her emotional distress caused by the Respondentís
discrimination/retaliation within thirty (30) days of this orderís becoming
final.

The Complainant shall
be entitled to the payment of the costs and fees, including a reasonable
actual attorneyís fee for her bringing of this action. The Complainant shall
within fifteen (15) days of this orderís becoming final, file a petition for
costs and fees with the Commission. The Respondent may respond to the
Complainantís petition within fifteen (15) days of its receipt.

MEMORANDUM DECISION

While many of the facts are in dispute in this
record, the real question comes down to the credibility of the respective sides
and the allocation of the burdens of production and proof. In short, is one
side's explanation more believable than the other's and has the Complainant
carried the ultimate burden of proof on the issue of discrimination and/or
retaliation? In order to answer these questions, the Hearing Examiner must
review the record as a whole and apply his judgment and experience of the world
to the testimony of the witnesses.

The Complainant asserts that the Respondent
discriminated against her on the basis of her race and color in a number of ways
and retaliated against her for her exercise of a right protected by the
Ordinance. In the context of this record the Complainant's claims of
discrimination on the bases of race and color will be treated as a claim of
discrimination on the basis of race. Though there are sometimes different
allegations relating to race and to color, the record does not indicate that is
the case here.

The Complainant's ultimate contention is that the
Respondent's discrimination and/or retaliation became so severe that she was
forced to terminate her employment rather than endure another day of
mistreatment.

The Respondent argues that its working conditions
are difficult for all employees and that it did not discriminate against the
Complainant or retaliate against her for her exercise of any right protected by
the ordinance. It contends that the Complainant, to the extent that she felt
aggrieved, failed to utilize the process provided by the Respondent to enforce
her rights. Once the Complainant did use the process established by the
Respondent, and ultimately left the employment of the Respondent, the Respondent
asserts that the Complainant failed to reasonably mitigate her losses.

The Respondent is a corporation providing a
variety of alcohol and other drug abuse counseling, mental health and
reintegration services to county funded clients who primarily come to the
Respondent from or through the Wisconsin Department of Corrections (DOC). The
Respondent counsels individually and in groups ex-convicts including provision
of some drug screening and other analytical services. The Respondent works under
contract or grant from the county with referrals from the DOC.

The Complainant first worked for the Respondent
and with her eventual supervisor, Daniel Langlois, under a contract program
called Madison Phases.

The Complainant began her work as an Alcohol and
Drug Counselor in October of 1997 and continued to the end of the contract in
June of 1998. During the Madison Phases contract, Langlois supervised four (4)
employees; two (2) of them were African American including the Complainant. The
record does not indicate that the Complainant had any problems with Langlois or
the Respondent during this first contract. It appears that both the Complainant
and Langlois felt their Madison Phases experience was positive.

The Complainant is an African American female.
Her primary employment has been in the area of alcohol and drug treatment and
the supervision of ex-convicts. Prior to coming to work for the Respondent, the
Complainant experienced at least one traumatic injury at the hands of a client.
This occurred while the Complainant was employed at Lutheran Social services in
a program not related to any run by the Respondent. This injury had recurring
physical and emotional effects.

Once the Madison Phases contract was completed,
the Respondent began a new contract, which it operated under the name of the
Madison Day Reporting Center (DRC). In October of 1998, Langlois specifically
recruited the Complainant to work on this new contract. The Complainant began
work in this new program as a Lead Coordinator. The DRC was managed by Langlois
and initially the Complainant and three other Coordinators reported to Langlois.
The Complainant had the most experience on the staff other than Langlois. The
other Coordinators were Stephanie Anderson, Julie Frohling and later, Derek
Kraemer and Scott Caldwell. Langlois and the other Coordinators are White.

The Complainant's job description was that of a
Coordinator though she functioned as a Lead Coordinator with additional
responsibilities.

With the hire of Frohling, things began to change
for the worse so far as the Complainant was concerned.

Frohling was a White female. The only other
African American employee of the DRC was Herbert Bent. Bent was responsible for
security at the DRC.

The primary client population of the DRC was
approximately 80 percent African American. The Complainant states that she
experienced an increasingly hostile working environment that included unfair job
assignments, unfavorable workloads, and the use of racial stereotypes and
racially demeaning language. This discrimination continued into calendar year
1999 and came to a head on March 5, 1999 during a heated meeting involving the
Complainant, Frohling and Langlois.

This contentious meeting flamed into a
confrontation between the Complainant and Langlois. The nature and severity as
well as the underlying cause of this dispute forms one of the central foci of
this complaint.

Over the following weekend, the Complainant wrote
a complaint alleging violations of the Respondent's harassment policy. She dated
and mailed the complaint on March 8, 1999. Almost immediately thereafter, the
Complainant left for a previously scheduled vacation.

Upon returning to work, the Complainant was
interviewed by Amy Winkler and Diane Ellis of the Respondent's Human Resources
Department in Milwaukee. Concerning the allegations of the complaint. Prior to
the interview with the Complainant on March 19, 1999, Winkler interviewed
Langlois and Frohling about the allegations.

The nature of the Complainant's March 8, 1999
complaint is another matter of dispute. The Complainant asserts that it set
forth a continuing pattern of racially discriminatory and harassing conduct on
the part of Langlois culminating in the March 5, 1999 conflict. The Respondent
states that the complaint did not indicate any form of racially discriminatory
or racially harassing conduct and treated it as a complaint about an abusive
meeting with a supervisor.

The Complainant contends that once the Respondent
concluded its investigation, the remedial steps taken by the Respondent were
inadequate to protect her from further discrimination and resulted in Langlois'
retaliating against her for her filing of the complaint. The Complainant also
charges that the Respondent's investigation was a sham and was inadequate to
determine what had actually happened to the Complainant.

According to the Complainant, her harassment by
Langlois continued and escalated after a meeting with Winkler, Langlois and Otis
Lockett. Lockett became Langlois' supervisor as a result of the Complainant's
complaint. Lockett was to investigate other allegations of
discrimination/misconduct of Langlois provided to the Respondent by the
Complainant on March 23, 1999 as part of the investigation.

In addition to Lockett's, an African American
male, becoming Langlois' supervisor, Langlois was required to receive additional
training and supervision to improve his management style and skills. Langlois
also was to apologize to the Complainant for the March 5, 1999 incident. The
Complainant was to return to work at DRC immediately. Langlois was to continue
to supervise the Complainant.

The Complainant complains that her workload was
increased, she was given more of the most difficult clients and her performance
was more closely monitored while other employees were not held to so high a
standard as the Complainant.

In this atmosphere of heightened tension, the
Complainant, in August of 1999, had her car and some of its contents set on
fire. At hearing, the Complainant attributed this attack to Langlois.
Approximately a month later, an unidentified person left a note with a pager
number on it on the Complainant's windshield. The Complainant also attributes
this incident to Langlois.

On October 8, 1999, at the direction of her
physician, the Complainant took a medical leave of absence. This leave resulted
from emotional stress and anxiety experienced by the Complainant during her
employment at DRC and a reoccurrence and exacerbation of physical discomfort
perhaps relating back to a much earlier attack upon the Complainant while she
worked for Lutheran Social Services.

The termination of the Complainant's employment
and the termination of her medical leave are also fertile grounds for dispute in
this record. The Respondent asserts that it requested and needed updated medical
verification of the Complainant's condition in February of 2000. The Complainant
had failed to keep the Respondent informed about her medical condition and
ultimately failed and/or refused to provide any further documentation.

The Respondent argues that it terminated the
Complainant's employment on February 17, 2000 due to her failure to provide
documentation of her medical condition. The Complainant asserts that she
constructively terminated her employment as of April 21, 2000 because she could
not reconcile herself to returning to work for the Respondent.

Based upon the experience of the Hearing
Examiner, both sides have problems with credibility. First, the Complainant
never adequately explains if Langlois were the racist thug she depicts, why did
his discriminatory conduct not begin until the beginning of the DRC contract.
The record indicates that the Complainant and Langlois worked together without
conflict during the contract preceding that of the DRC. It appears that Langlois
recruited the Complainant to work on the DRC contract after his experience
working with the Complainant at Madison Phases. This does not truly mesh with
the image of a callous and insensitive Langlois.

The Complainant also contributes to her
credibility problems by demonstrating a certain racial insensitivity in remarks
she made about Frohling's failure to be assigned to perform urinalyses
particularly for African American male clients. It is undisputed that the
Complainant referred to Frohling as having "lily-white hands". The fact that the
Complainant, in the same context, referred to herself as having "gingerbread
hands" does little to diminish the impact for the Hearing Examiner.

The Complainant also appears to be particularly
sensitive when there is a remote question of race involving African Americans.
Her repeated insistence on hiring additional African American Coordinators who
may be able to work better with African American clients even though she
participated in the hiring panel that hired nothing but White coordinators at
the DRC causes the Hearing Examiner to question the Complainant's own color
blindness.

The Complainant also damages her credibility by
making accusations against Langlois that are totally unsupported in the record.
There is nothing more than suspicion to connect Langlois with the August 1999
fire in the Complainant's car. The Complainant attempts to raise an inference of
involvement by contending that Langlois tried to thwart an investigation into
the incident. The most suspicious fact here is that Langlois failed to report
the fire to the Milwaukee office of the Respondent. Langlois was orally
reprimanded for this and eventually received a written warning.

Similarly, there is nothing in the record to
connect Langlois with the incident in September of 1999 in which someone left a
note including a pager number on the Complainant's windshield.

The Complainant also holds somewhat contradictory
positions relating to her claims of discriminatory treatment. At one point, she
felt discriminated against when she was not conducting management level tasks
and was not given responsibility commensurate with her level of experience.
However, once given some of those duties and responsibilities, the Complainant
objected to the increased workload.

The Respondent, on the other hand, has
credibility problems of its own. The Respondent coyly asserts that Langlois'
testimony must be judged worthy of credibility since he is not a named party and
no longer works for the Respondent. As the Complainant correctly points out in
her Reply Brief, Langlois' name may not appear at the top of the pleadings, but
his conduct lies at the heart of the complaint's allegations. If for no other
reason than personal vindication, Langlois' testimony must be viewed with the
same jaundiced eye as that of the Complainant. On a professional basis, the
outcome of this complaint may do Langlois damage in seeking or retaining
employment in his chosen field.

Langlois' testimony on several important points
was directly contradicted by that of Lockett, his supervisor. Most importantly,
Lockett determined that Langlois had referred to African American clients of the
Respondent as "monkeys or apes". Langlois denied that he had made such a
characterization. However, Lockett found that he (Langlois) had in fact made
such a characterization.

Lockett also testified that he believed that
Langlois resented the Complainant for filing a complaint. Lockett attributed
Langlois' outburst against the Complainant and the quality of her file
maintenance to the Complainant's accusation of discrimination and harassment.

Langlois' explanation for the Complainantís
reaction to his conduct on March 5, 1999 was questioned by Winkler and Kramer in
a meeting on March 23, 1999. When Langlois attributed the Complainant's reaction
to her own defensiveness, Kramer suggested to Langlois that he might want to
come up with a better explanation. See exhibit G-13.

The Respondent's problems are not limited to
Langlois. Amy Winkler, the Respondent's Human Resources Director in Milwaukee
and the person in charge of the investigation of the Complainant's complaint,
was unable to identify any specific training that she had undergone in the
conduct of a discrimination investigation. She also testified to a lack of
practical experience in such matters. In general, the Hearing Examiner finds
that Winkler's testimony was halting and demonstrated a lack of confidence in
her testimony.

Lockett too has certain questions about his
credibility. As with Winkler, he is still employed by the Respondent and may
well owe a debt of loyalty to his employer. On several occasions, Lockett
testified about what were good practices for a supervisor in dealing with a
subordinate. These included making written notes about important meetings with
supervisees. However, Lockett notably failed to memorialize the vast majority of
his contacts with either the Complainant or with Langlois.

It must be stated that despite certain problems
with credibility, most of the witnesses also have points indicating that their
testimony has credibility. For example, the Complainant's position over the life
of the complaint has remained quite consistent. One might expect to see
differing accounts throughout the process if one was changing his or her story
to reflect new disclosures of the parties and witnesses. Similarly, Langlois'
testimony in many respects is corroborated by the testimony of other witnesses.
While those witnesses may present there own credibility issues, the Hearing
Examiner is not inclined to find conspiracies without substantial proof in the
record. It also should be noted that in 2000, the Complainant and Langlois were
sufficiently friendly to share information about job availabilities in the
Madison area.

These admittedly mixed conclusions about the
credibility of various witnesses does not necessarily compel a particular
outcome for the complaint. There are numerous allegations and claims. What this
means is that the Hearing Examiner will need to address each claim or group of
claims and apply the credibility findings in the analysis of each claim.

The Complainant's complaint can be divided into
three general areas. The first area covers the period of time from October 1998
up to March 5, 1999. During this period the Complainant asserts that Langlois
subjected her to less favorable working conditions than other employees not of
her race. These less favorable conditions allegedly may form the basis of a
claim of discrimination in the terms and conditions of employment, as well as,
demonstrating that the Complainant was subjected to harassment due to her race.

The second area covers the period March 5, 1999
to approximately March 25, 1999. During this period, Langlois and the
Complainant had a heated incident on March 5, 1999, which triggered the
Complainant to file a written complaint. The Respondent then conducted an
investigation of the complaint and reached a resolution on or about March 25,
1999. The Complainant contends that the incident with Langlois constitutes
racially motivated harassment and that the Respondent failed to conduct an
adequate investigation of her complaint. She further asserts that the Respondent
failed to take remedial action that would likely prevent a reoccurrence of the
harassment.

The third area covers the period beginning on or
about March 25, 1999 and concludes on or about October 8, 1999 when the
Complainant states that she had to take medical leave as a result of Langlois'
continuing harassment and his retaliation for the Complainant's filing of the
complaint.

The Respondent denies any discrimination or
retaliation. It states that the March 5, 1999 incident was not racially
motivated and that it conducted a prompt and effective investigation into the
Complainant's complaint. Further, the Respondent argues that it took reasonable
steps to prevent additional discrimination and responded promptly to the
Complainant's concerns.

The Hearing Examiner has separately addressed
issues of credibility with respect to the major witnesses who testified at the
time of hearing. In addressing the above claims, the Hearing Examiner will make
reference to these credibility determinations and the strengths and limitations
of each witness.

It should be noted that the Complainant made an
interesting strategic decision by presenting its entire case through the
testimony of the Complainant alone. This immediately creates a conflict between
the Complainant's credibility and that of the witnesses for the Respondent. It
also means that there is little opportunity to find corroboration of the
Complainant's testimony.

The impact of this choice is first seen when
examining the claims and allegations relating to the period extending from
October 1998 up to March 5, 1999. The Complainant presents a long list of
actions to demonstrate her unequal treatment and the beginnings of her
harassment. The Complainant states what she felt happened to her, but presents
no documentary evidence by in large. She attributes a racially discriminatory
motive to each of the items in her list. The Respondent is left with the task of
either denying the items on the Complainant's list or to deny that there was an
illegal motivation.

As with the complaint as a whole, the
Complainant's complaints in the first period can be divided into three general
areas. First, the Complainant contends that Langlois, from the beginning of the
contract, treated the African American clients badly. She says that he laughed
at the clients and called them names or referred to them as "lazy oaf". The
Complainant asserts that Langlois was insensitive to the needs and feelings of
the African American clients and that in turn created hostility for her. For
example, the Complainant testified that Langlois laughed at the poor photo
quality of the I.D. card photographs of the African American clients and called
them "dark spots."

The Respondent generally denies the Complainant's
allegations or indicates that there was nothing discriminatory in the incident.

The first issue confronting the Hearing Examiner
with respect to these allegations is the uncontroverted testimony that the
Complainant and Langlois worked together at the Madison Phases job without any
indication of a problem. It is also undenied that when the DRC contract began,
Langlois specifically recruited the Complainant. If she had observed conduct in
Langlois that was of a concern to the Complainant, it seems unlikely that she
would have agreed to come to work at the DRC. Additionally, she was offered and
accepted the position of Lead Coordinator not something likely to occur if
Langlois was harboring a discriminatory animus.

Even assuming that Langlois was laughing at the
clients instead of an inherently funny situation, there is nothing in the record
to draw a connection between Langlois' alleged insensitivity and the
Complainant's conditions of employment. At this stage in the working
relationship, there is no indication that Langlois compared the Complainant to
the clients. Additionally, calling a person a "lazy oaf" in no way reflects upon
that individual's race.

The incident with the I.D. card photographs seems
to be a factual statement of an unfortunate technical problem. On its face,
there is nothing to call racial discrimination into question. Langlois'
unwillingness to let untrained individuals try to reset the camera which did not
belong to the DRC, does not appear to demonstrate any discriminatory intent.

The Hearing Examiner sees the Complainant's
claims of discrimination in these contexts as the start of a heightened
sensitivity to issues of race on the part of the Complainant. Given the
Complainant's failure to raise any of these alleged issues at the time they
arose, they have the feeling of one's looking backwards in time to justify a
later incident.

The second general area of problems for the
Complainant deals with her duties and her caseload. The Complainant contends
that she was required to sign in and out and to maintain a log of her activities
while other employees were not. She also states that she was required to
maintain a larger caseload, especially of more difficult clients, than others.
She testified that duties that had originally been assigned to her were
reassigned to another employee. She complains that she was required to perform
urinalyses for male clients while other female Coordinators were not. The
Complainant also argues that African American clients especially difficult ones
were assigned to her because of her race.

Before addressing specific claims, the Hearing
Examiner must make note of several uncontested facts. First, the Complainant was
the only African American Coordinator. As Lead Coordinator, the Complainant
participated in the interviewing, hiring and training of the remaining
Coordinators including Stephanie Anderson and Julie Frohling. On this record,
one cannot determine the racial makeup of the pool of available candidates for
the Coordinator positions. However, the Complainant must have known that she
would be working with an entirely White staff of coordinators.

Second, the client population of the DRC was
approximately 80 percent African American. There were about 75 clients instead
of the 25 clients in the Madison Phases program.

While a Lead Coordinator may not have all of the
rights and duties of a manager, a Lead Coordinator does exercise some
supervisory responsibilities and it is not unreasonable to except a Lead
Coordinator to set a good example for other employees.

The Complainant's claim that she was required to
sign in and out and to maintain a log of her work while others were not is not
fully supported by the record in this matter. Langlois testified that he wanted
all employees to follow these procedures. That he had less success with other
employees does not mean that it was discriminatory to expect the Complainant,
the Lead Coordinator to maintain these procedures. The record indicates that
there was some slow increase over time in the number of employees complying with
Langlois request. Otis Lockett, who became Langlois' supervisor in March of 1999
also tried to encourage compliance with these requirements. When the Complainant
complained to Langlois about the fact that others particularly Frohling were not
complying, Langlois told her that she was to set an example. As the Hearing
Examiner has noted, it is not unreasonable to expect a Lead Coordinator to lead
by example.

Even if the Complainant were the only person
complying with the requirements, as she seems to believe, the record would not
support a finding of discrimination. Herbert Bent, the Respondent's Head of
Security, is an African American and apparently did not comply or did not comply
until some months later. Bent's treatment indicates that the Complainant was not
singled out because of her race.

The Complainant complains that certain duties
originally assigned to her such as maintaining the petty cash fund and setting
up the office telephone system were reassigned to Frohling. It is undisputed
that such a reassignment took place. The question is whether there was anything
discriminatory in the transfer of authority.

The Complainant felt that she had a high caseload
at that time. She was having difficulty maintaining her caseload and her Lead
Coordinator responsibilities. Langlois testified without contradiction that
Frohling had good organizational skills. A transfer of relatively minor
administrative duties from a busy worker to one with skills that might better
fit the job does not support a claim of discrimination. Despite the fact that
certain administrative duties were removed from the Complainant, the loss of
these duties do not represent any kind of an adverse employment action.

An additional issue arises out of the
reassignment of the responsibility for setting up the telephone system's long
distance calling codes. Employees were to be assigned a long distance code to
keep track of their long distance calls. When Frohling set up the codes, she
gave all the employees their codes except for the Complainant and Bent, the only
two African American employees. This failure on Frohling's part was identified
when the Complainant needed to call a family member due to a family emergency.
Because she did not have a current long distance code, the Complainant was
prevented from contacting her family. When she told Langlois, he provided the
Complainant with his code so that she could make the necessary call. Langlois
indicated that Frohling must have forgotten to give the codes to the Complainant
and Bent.

While the circumstances of this incident hint at
the possibility of a discriminatory motive on the part of Frohling, Frohling's
conduct cannot be attributed to the Respondent. The failure to be provided with
the long distance code was remedied within hours of the problemís identification
and the short-term effects were minimized by Langlois' providing his code to the
Complainant.

This incident did not adversely affect the
Complainant's performance of her job in any material way. Even if Frohling
withheld the codes from the Complainant and Bent based upon some degree of
racial animus, it is a single incident. It will not serve to demonstrate a
racially hostile work environment. Frohling was a co-worker not a supervisor.
There is nothing in the record to indicate that Frohling acted for the
Respondent or with the knowledge of the Respondent. At most, it might put the
Respondent on notice that there was a potential problem between the Complainant
and Frohling. Nothing in the record indicates, however, that the Complainant
informed the Respondent through Langlois or anyone else that she suspected that
Frohling's conduct was racially motivated.

The Hearing Examiner is somewhat troubled by the
telephone code incident. Frohling's failure to give the codes to only the
African American employees may be merely coincidental, but it could be more. At
a minimum, this incident, which must have occurred early in the contract,
foreshadows the downward spiral in the relationship between the Complainant and
Frohling. This downward spiral leads to further incidents.

The Complainant argues that she was required to
perform urinalyses of male clients more frequently than Anderson or Frohling.
The Complainant does not supply any documentary support for this contention. The
record indicates that the Department of Corrections established the schedule for
performing urinalyses of DRC clients. When a urinalysis was scheduled, the
Coordinator on duty was required to perform the test. There is no allegation
that either the Complainant was placed on the schedule more frequently or that
Anderson or Frohling were on the schedule less frequently or were somehow
otherwise permitted to avoid the scheduled work. On this record, there is no
reason to find that one party is more credible than the other. The Respondent's
legitimate, nondiscriminatory explanation is not rebutted by the Complainant.
The Hearing Examiner finds nothing to support the Complainant's claim that she
was required to perform more frequent urinalysis of male clients than Anderson
or Frohling. Even if she were performing more of such urinalyses, nothing in
this record indicates that it was because of her race.

It is noteworthy that the Complainant's
allegation really focuses more on Frohling. It appears that the Complainant may
not feel that she was performing more urinalyses than Anderson, another White
female coordinator. The Complainant's concern seems aimed mostly at Frohling's
assignment.

The Complainant contends that she was required to
carry a heavier caseload than other Coordinators and that she had more
"difficult" clients. After Lockett became Langlois' supervisor in March of 1999,
he reviewed everyone's caseload. He found that the Complainant and Anderson had
approximately the same number of clients. Frohling, however, had a significantly
smaller client list than either the Complainant or Anderson. Nothing in the
record explains why Frohling had so many fewer clients. However, the fact that
Anderson had roughly the same number of clients as the Complainant indicates
that the Complainant's race was not a factor in the number of cases.

The claim that the Complainant was assigned a
higher percentage of the most difficult clients cannot be ascertained from the
record in this matter. Neither party provided a definition or description of a
"difficult" client or any list of "difficult" clients as opposed to "easy"
clients.

One might suppose that as a Lead Coordinator, the
Complainant was more experienced and would be better equipped to handle a more
difficult client. However, the record is inadequate to determine whether this
was the case or not.

There is similarly nothing in the record to
indicate that the Complainant was routinely assigned clients because of her race
or that of the client. The Complainant contends that Langlois asked her to take
a client because none of the other Coordinators could understand him. In
requesting the Complainant's assistance, Langlois stated that because she (the
Complainant) was Black and the client was Black they might be able to understand
each other.

While Langlois' statement may well be
insensitive, it does not reveal any particular racial animus. If no one could
adequately communicate with the client, the Respondent could not meet its
obligation toward the client or under the contract.

The Complainant seems to believe that the basis
of Langlois' request is an indication that he viewed the Complainant as an
African American to be no better than the clients. This is a theme that is
repeated throughout the Complainant's complaint. It appears to be a matter of
personal respect rather than reinforcement of a negative stereotype.
Particularly in the context of this incident, the Hearing Examiner can find no
adverse employment action or any statement that might be patently offensive to a
reasonable person.

The Complainant's third general area of
complaints is somewhat of a grab bag. Some of the complaints may fall within the
first two areas, though it seemed best to discuss them separately.

The Complainant states that Langlois was not
interested in the issue of providing food for the clients. The Complainant was
concerned that many of the clients were at the facility for a long time each
day, particularly the African American clients. The Complainant was concerned
that these clients had no source of food while at the DRC.

Langlois' response to the Complainant that
perhaps they could get some vending machines was inadequate to the Complainant.
Many of the clients would not have money for vending machines. Langlois' further
response was that this was a low priority item for which there was currently no
funding.

It is unclear how the Complainant sees this
interaction in the context of her complaint. At a minimum, she seems to contend
that Langlois' attitude towards the African American clients was insensitive. To
the extent that Langlois' comments apply to the entire client population, they
are race neutral. While the majority of the client population of the DRC was
African American, approximately twenty percent (20%) of the population was White
or at least not African American. Nothing in Langlois' statements seems to be
directed at any particular part of the client population.

It is possible that the Complainant views
Langlois' statements as demonstrating some lack of confidence in her judgment or
abilities. Though the Hearing Examiner finds no such inference in Langlois'
words, there is even less support for the notion that Langlois might have
harbored such thoughts as a result of the Complainant's race.

The Complainant cites an instance in which
Langlois assigned an African American client to the Complainant because the
client had sent Coordinator Stephanie Anderson a "love letter" while he had been
incarcerated. When the Complainant questioned Langlois, Langlois stated that the
client probably had kids all over and just wanted an opportunity to have
something going with a young White woman. Both agreed that it would be
inappropriate for Anderson to be the Coordinator for this client, though the
Complainant objected to Langlois' characterization.

Langlois once again demonstrates a lack of
sensitivity, but nothing discloses a racial motivation for the transfer. The
pre-program contact of Anderson by the client represented a safety risk for
Anderson. Transfer of the client was warranted and there is no indication that
the Complainant was selected because of her race.

The Complainant raises what appear to be two
issues regarding a van used to transport clients to community work sites. First,
the Complainant objected to Langlois apparent assignment of mostly or
exclusively African American clients to the work van. She questioned why White
clients were not assigned. Langlois told the Complainant that the White clients
generally had jobs and were not appropriately assigned to the work van.

The exact purpose of the work van is not clearly
established in the record. To the extent that it is used to transport those to
work sites to comply with terms of probation, the fact that some clients already
have obligations would seem to be a legitimate nondiscriminatory reason for
those clients to be excluded. Even if assignments to the work van were to
accomplish some punitive component of the client's probation or sentence, there
is nothing in this record to indicate that anyone who was to be assigned such
duty was excluded for any reason. The Complainant provides no information to
suggest that Langlois was not correct with respect to his observation. For
someone who has displayed some degree of insensitivity to his statements,
Langlois appeared to be reasonably straightforward.

The second issue is presented less clearly. It
appears that the Complainant observed that White coordinators were not
accompanying clients in the work van as frequently as the African American
employees, the Complainant or Bent. The Complainant contended that Frohling
especially was being held off the van duty. Unfortunately, the record is so
incomplete in this regard that any claim respecting it falls for a lack of
evidence or even clarity.

The final issue in the pre-March, 1999 area
raised by the Complainant relates to the granting or taking of leave. The
Complainant asserts that she was not permitted to request vacation time until
Langlois and less senior Coordinators had made their requests. In contrast, the
Respondent states that vacation leave was granted on the basis of "first come,
first serve". There are two related questions raised by the Complainant, but
resolving this issue first will assist in the resolution of at least one of the
additional questions.

The Complainant presents no documentary evidence
in support of her position. While the evidence in support of the Respondent's
position is somewhat lacking also, it has the benefit of being a generally
accepted practice in an employment setting. The Hearing Examiner has not heard
of a vacation scheme such the one described by the Complainant. On one hand,
perhaps that is evidence itself of the discriminatory nature of the practice.
However, given the record as a whole, the Hearing Examiner views this dispute as
a matter of credibility.

In the context of credibility, the Hearing
Examiner finds the Complainant's position wanting. The fact that the
Respondent's explanation of a "first come, first serve" system makes more
business sense gives it an edge on credibility. The Complainant's position
without documentary support and in light of her other claims, lacks the ring of
credibility.

The first additional question related to the
system for signing up for vacation involves time off during the holiday season
of 1998/1999. The Complainant requested time off to attend the Rose Bowl.
Langlois denied the Complainant's request indicating that it was a busy time and
she was needed at work. The Complainant later learned that Frohling had taken
the time off to attend the Rose Bowl. The Complainant asserts that Frohling's
being allowed to take leave instead of the Complainant was racially motivated.

Assuming that the Hearing Examiner's
determination that the Respondent used a "first come, first serve" system is
correct, there is nothing in the record to indicate who was the first to request
the time off to attend the Rose Bowl. If Frohling had been first, then she would
have been entitled to the time even though the Complainant was more senior.
Assuming that Frohling had first requested the time off, Langlois' statement
that the Complainant was needed because of the caseload was correct. The Hearing
Examiner states this scenario in the form of an assumption because there is no
evidence in the record sufficient to permit the Hearing Examiner to clearly find
the facts of what did happen. Given this lack of a factual groundwork, the
Complainant cannot carry her burden of proof as it always rests with the
Complainant.

The final issue regarding leave relates to
Langlois' requirement that the Complainant cover Frohling's caseload while
Frohling was absent, no one was allegedly required to cover the Complainant's
when she was on leave. The only evidence relating to race with respect to this
issue is that Frohling and all the other Coordinators are White while the
Complainant is African American. The Complainant seems to ignore the fact that
as Lead Coordinator, it would be entirely reasonable to expect that she should
cover the caseload of an absent Coordinator. It is also reasonable to expect
that someone would cover the caseload of the Lead Coordinator when she is
absent. However, to the extent that the Complainant's caseload was not covered
when she was absent, the record is devoid of evidence demonstrating that her
race was a factor in the lack of coverage. Langlois testified that in the
Complainant's absence, he circulated memos to the other Coordinators requiring
coverage of the Complainant's caseload. It is possible, as the Respondent
suggests, that the Complainant was simply unaware of a memo circulated in her
absence. On this record, it is impossible to determine what exactly happened,
but that whatever happened had nothing to do with the Complainant's race seems
clear.

To the extent that the Complainant asserts a
claim for disparate treatment in her terms and conditions of employment based
upon her race for the period from October, 1998 through the end of February,
1999, whether one considers the incidents individually or collectively, the
Complainant fails to establish the required connection between her race and the
incident(s) of which she complains. Without establishing a causal link, there
can be no finding of discrimination. An adverse action must be linked to the
Complainant's membership in a protected class because the essence of
discrimination is less favorable treatment due to one's protected
characteristic. The Hearing Examiner does not doubt the sincerity of the
Complainant's belief that her race was the cause of the things she found wrong
at the DRC, but she fails to adequately demonstrate that link.

In order to file a complaint of discrimination
with the Commission, it is sufficient to merely allege facts sufficient to state
a claim of discrimination.

In order to receive a finding of probable cause
to believe that discrimination has occurred or may be occurring, the burden on
the Complainant rises from one of articulation to one of production. This means
that the Complainant must present or point to facts that if believed are
sufficient to establish each element of a claim of discrimination. This point is
reached without weighing disputed evidence, but by resolving all reasonable
factual disputes in favor of the Complainant.

At hearing, the Complainant is not entitled to
the same inference of credibility as during the investigative phase. The Hearing
Examiner must weigh the evidence presented by both sides and determine which is
the most credible. The Hearing Examiner's credibility determinations are
sprinkled throughout this memorandum. Ultimately, the Complainant must establish
each element of her claim of discrimination by the greater weight of the
credible evidence. This is also referred to as the preponderance of the
evidence.

In a case such as this one, the Complainant may
attempt to show direct evidence of discrimination or demonstrate discrimination
through the production of indirect evidence. While the Complainant was the only
person to testify on her behalf at the hearing, this case rests primarily on the
production of indirect evidence. In such cases, the Commission follows the
McDonnell Douglas/Burdine paradigm, also known as the burden-shifting test for
evaluating the evidence of discrimination. McDonnell Douglas Corporation v.
Green, 411 U.S. 792 (1973); Texas Dept. of Community Affairs v. Burdine,
450 U.S.248 (1981). In this approach, the Complainant must present enough
evidence to establish a prima facie claim of discrimination. A prima facie claim
is one that sets forth each element necessary to demonstrate that discrimination
has occurred. In most cases, the minimum elements are membership in a protected
class, an adverse action and a causal link between the Complainant's membership
in a protected class and the adverse action.

If the Complainant establishes a prima facie
claim of discrimination, the burden shifts to the Respondent to produce a
legitimate, nondiscriminatory explanation for its actions or for the adverse
action of which the Complainant complains. It must be stressed that this is a
burden of production and not one of proof. It is sufficient for a Respondent to
prevail to state a legitimate, nondiscriminatory reason.

Presuming that the Respondent meets its burden of
production, the Complainant may rebut the Respondent's explanation by
demonstrating that the Respondent's proffered explanation is either not credible
or represents a pretext for an otherwise discriminatory reason. At all times,
the final burden of proof rests with the Complainant.

For the items of which the Complainant complains
up to the March 5, 1999 incident, she either fails to establish that there was
an adverse action or to the extent that some action might be considered adverse
that there is a causal connection between the action and her race. Perhaps the
claim that comes closest to shifting the burden to the Respondent is that about
scheduling of leave. The Respondent presents a legitimate, nondiscriminatory
reason for Frohling's being able to attend the Rose Bowl while the Complainant
was not. The Complainant fails to rebut the showing of a legitimate explanation,
but more importantly fails to convincingly establish that she either experienced
a more than trivial employment action or that her race likely played any part in
the action.

To the extent that the Complainant presents her
list of complaints to establish a pattern of conduct demonstrating that she was
the victim of racial harassment, the Complainant again fails to carry her burden
of proof. Though harassment claims arose from the notion of different and less
favorable terms and conditions of employment, the elements of proof have
developed a life of their own. Meritor Sav. Bank, FSB v. Vinson, 477 U.S.
57 (1986); Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). The
greatest number of cases in the harassment area stem from claims of sexual
harassment and special elements have grown up around this type of litigation. At
the state level and even in the Equal Opportunities Ordinance, special
provisions have been adopted in response to claims of sexual harassment. See
Wis. Stats. 111.36(1)(b) and (br) and M.G.O sec. 3.23(8)k. Because these
provisions are "self-contained", they have not necessarily followed federal case
law. Sanderson v. Handi Gadgets Corp., (LIRC March 31, 2005), and may not
necessarily transfer well to other claims of harassment based upon other
protected classes.

The Commission has developed its own line of
cases in the area of racial or other harassment by a supervisor. Guyton v.
Rolfsmeyer, MEOC Case No. 20424 (Comm. Dec. 07/18/86, Ex. Dec. 04/28/86),
Vance v. Eastex Packaging, MEOC Case No. 20107 (Ex. Dec. 05/21/85). While
these cases loosen the requirements for establishing a hostile workplace, they
do not, as asserted by the Complainant, eliminate them entirely. Guyton,
supra, and Vance, supra. Cases resulted from recognition that some
federal courts were too restrictively establishing the requirements for
determining a hostile workplace. Guyton, supra.

Generally, one must demonstrate that one is the
recipient of patently offensive conduct, of a nature related to one's protected
class, of a severity in time or extensiveness so as to interfere with one's
ability to perform the requirements of his or her job. In the case of coworkers,
harassing a co-worker, the employer must have notice of the harassment and be
given the opportunity to correct it. In the case of harassment by a supervisor,
notice may be presumed where the supervisor's actions are imputable to the
employer.

Many of the incidents highlighted by the
Complainant either do not represent patently offensive conduct or words. In
other cases, as with above, the conduct complained of does not have any apparent
connection with the Complainant's race. As such, these complained or situations
do not establish a pattern of conduct demonstrating racial harassment.

As noted elsewhere, the Hearing Examiner neither
doubts the sincerity of the Complainant's belief that her race was the
motivating factor nor that the conditions at the DRC were particularly
difficult. However, the Hearing Examiner cannot find that the Complainant has
successfully demonstrated a racial motive for the things the Complainant
experienced.

Before moving to the March 5, 1999 through March
25, 1999 period, the Hearing Examiner must make some observations. Though, the
Hearing Examiner does not find that there was a racially hostile workplace
during the period from October 1998 to March 1999, it seems clear that the DRC
was not a satisfactory place to work. As typified by the Complainant's meeting
with Langlois on or about February 16, 1999, the Complainant wanted more
responsibility as Lead Coordinator. The Complainant told Langlois that she was
feeling resentment and disappointment over the lack of supervisory duties. That
Langlois felt that the Complainant was not ready for additional duties because
of an inability to appropriately manage her own caseload is, in the Hearing
Examiner's opinion, what drove the Complainant's dissatisfaction in the early
months of the operation of the DRC. Additionally, there was clearly a rising
level of antagonism between the Complainant and Frohling. One more factor
leading to the unhappy and unhealthy environment was the caseload. With only one
or at most two additional Coordinators, the DRC was responsible for three times
the Clients as Langlois and the Complainant experienced at Madison Phases.

After the February 16, 1999 meeting at which the
Complainant requested additional duties as Lead Coordinator, Langlois gave her
those duties a week or so later in February 1999. As part of the assignment of
additional duties, Langlois reduced some other duties to permit the Complainant
additional time for case management functions.

Despite the Complainant's assumption of some
additional duties, Langlois was also feeling an increase in the level of stress.
At one meeting in the second half of February with the Complainant, Langlois
told her that he was responsible to too many "fucking" people.

Langlois was disturbed by the noticeable decline
in the working relationship among the Coordinators especially between the
Complainant and Frohling. On or about, February 26, 1999, Langlois held a
private meeting with the Complainant in another staff person's office. The focus
of the meeting rapidly became the relationship between the Complainant and
Frohling.

As noted above, the relationship between the
Complainant and Frohling seems to have been rocky since the beginning. This
seems somewhat strange since the Complainant sat on the panel that hired
Frohling. It should be noted that the Complainant apparently had little or no
problems working with Stephanie Anderson the other White, female coordinator or
either of the White male coordinators.

At the February 26, 1999 meeting, Langlois
focused on the relationship issues between the Complainant and Frohling. The
Complainant indicated that she felt that Frohling was "snobby", that Frohling
did not consult with the Complainant about client matters and that Frohling
showed the Complainant no respect. Additionally, the Complainant described
Frohling as a "Snow White" and indicated that Frohling needed to get her
"lily-white hands" doing some of the urinalyses.

Langlois pushed the Complainant for a list of
concerns about Frohling. The Complainant did not want to provide the list at
that time. She suggested that she would provide it at a meeting of Coordinators
subsequent to her return from vacation.

The meeting came to an abrupt end when the
Complainant told Langlois that she did not want to talk about the matter
further. The meeting had lasted about an hour to an hour and a half and the
Complainant was not feeling well.

Later in the afternoon of February 26, 1999,
Anderson told Langlois that she was concerned that the Complainant was talking
disrespectfully about Frohling to other members of the staff. This created a
need for another meeting between Langlois and the Complainant.

On March 5, 1999, Langlois approached the
Complainant for a lunchtime meeting. The Complainant was reluctant. She stated
that they had been meeting frequently and didn't want to meet then. Langlois
insisted and told the Complainant that he would buy lunch next door when the
Complainant said she couldn't afford it.

The Complainant eventually acquiesced to Langlois'
request/demand for a meeting.

Langlois wanted to discuss concerns about clients
and staff at the DRC. He had asked the Complainant to prepare a list of
concerns. At first, the Complainant didn't want to discuss her list of concerns.
By the end of the meeting, however, Langlois and the Complainant had agreed upon
an approach to the problems that would be discussed the following Monday at a
meeting of the Coordinators. Langlois heard additional concerns about the
Complainant talking about Frohling to other staff. Langlois decided that he
needed to mediate a meeting between the Complainant and Frohling before things
got entirely out of control.

At Approximately 3 o'clock on March 5, 1999,
Langlois called the Complainant to a meeting with Frohling. The Complainant did
not want to attend the meeting, but Langlois insisted.

Langlois, the Complainant and Frohling met in
another staff person's office for privacy. Langlois set ground rules for the
meeting. The Complainant told Frohling about her concerns surrounding the lack
of respect shown the Complainant by Frohling and the Complainant's frustration
that Frohling was not coming to the Complainant on client related matters.

Frohling told the Complainant about how
inapproachable the Complainant seemed to be, the lack of knowledge about
reporting to the Complainant and the Complainant's harmful comments involving
Frohling's "lily-white hands". Frohling indicated that she would do what she
could to improve the working relationship.

The Complainant was shocked to hear Frohling make
reference to the "lily-white hands" comment. The Complainant felt her
conversation with Langlois was confidential and she felt that Langlois had
betrayed her confidence. It appears that Langlois did not, in fact, tell
Frohling of the comment, but Anderson had. Anderson had overheard the comment on
February 26, 1999 while she was working in an office adjacent to that in which
the Complainant and Langlois were meeting.

The Complainant became very upset and indicated
that she no longer wished to participate in the meeting and started to leave.
This angered Langlois who told the Complainant that the meeting wasn't finished
and that she couldn't leave.

The Complainant got up anyway and headed for the
door. Langlois was standing between the Complainant and the door. He was moving
back and forth in agitation. On this record it is not clear whether Langlois
intended to block the Complainant's exit or did so temporarily by accident.
Langlois denies blocking the exit while the Complainant testified that Langlois
would not let her leave.

Langlois' statements about the meeting and what
happened next are subject to doubt. In the notes compiled by Amy Winkler, the
Respondent's head of Human Resources, in a meeting on March 23, 1999 with
Winkler and Ralph Kramer, the Respondent's Vice-President for Operations and
Langlois, Kramer is reported to have told Langlois that he had better think
about a better explanation for his (Langlois') actions and the Complainant's
reactions.

The Complainant was able to navigate around
Langlois and headed to her office. Langlois followed her, at least yelling
loudly at her if not using profanity. He was comparing the Complainant's refusal
to work out the problems with Frohling to the conduct of the clients. Langlois
shouted at the Complainant that she should be in a "fucking" group like the
clients and that the Complainant cared more for the clients than one of her
coworkers.

Though Langlois was loud, angry and profane, no
one indicates that he used racially explicit language while talking to or
yelling at the Complainant.

The Complainant returned to her office with
Langlois closely following her. Once in the Complainant's office, Langlois
closed the door to minimize disruption in the office. He continued to be angry
with the Complainant for leaving the meeting with Frohling.

The Complainant was frightened by Langlois'
conduct and anger and tried to distance herself from him. She retreated to a
place of safety behind her desk. Langlois approached the desk and while leaning
over it with his hands upon it, continued to yell at the Complainant.

While the Complainant was behind her desk, she
attempted to call her husband. She reached him after a couple of attempts and
briefly indicated that she needed to leave the office. She started towards the
door. Even though Langlois was not directly in front of the door, he was
standing next to it. This frightened the Complainant and made it difficult to
reach her coat and exit the office. Though Langlois took no steps to prevent the
Complainant from leaving, it took the Complainant several attempts to actually
leave. As she exited she asked Langlois to lock her door to protect her
possessions.

The Hearing Examiner has opted to address the
March 5, 1999 confrontation separately because it seems, in some ways, to be a
watershed in the relationship between the Complainant and the Respondent.
Despite this view of the Hearing Examiner, the record is clear that the
Complainant considers the March 5, 1999 confrontation with Langlois as but a
single star in a broad and painful constellation of mistreatment. The Respondent
sees the incident as an unfortunate confrontation that triggered an
investigation and preventative action.

With respect to the objective facts, there is a
dispute between the Complainant and Langlois and Frohling as to what happened
and its severity. The Complainant testified to an incident that escalated from a
tense but professional discussion intended to ease office conflicts into a loud,
profanity laced dressing down that placed the Complainant in fear for her
physical safety. Langlois admits to being frustrated and angry. He denies using
profanity or doing anything that might have reasonably put the Complainant in
fear. Langlois asserts that it was the Complainant's own defensiveness that made
her uneasy.

It is the Hearing Examiner's experience that the
truth of the matter generally lies somewhere between the extremes of a given
situation. In this situation, the Hearing Examiner finds that the Complainant's
recounting of the objective facts is much closer to the truth however. Langlois'
testimony is suspect in that he understands the difficulty of the position in
which his conduct placed him. He does not strike the Hearing Examiner as the
type of person who would easily lose control of his emotions and would not want
to admit to such a loss. That his explanation of events unreasonably favors him
is evidenced by the notes of a meeting held on March 23, 1999 between Langlois
and Winkler and Kramer. See Exhibit G-13. When Langlois was asked why the
Complainant felt threatened and felt that she needed to contact her husband,
Langlois offered that the Complainant's own defensiveness was at fault. Winkler
and Kramer clearly did not believe Langlois and told him that he had better seek
a better answer for the Complainant's concerns.

While the March 5, 1999 confrontation clearly
represented the abuse of a subordinate by a supervisor, the question is whether
that incident was racially motivated. The Respondent contends that given the
record of what she saw as racially motivated abuse in the months leading up to
March 5, 1999 and Langlois' comparison of the Complainant to the client
population which is overwhelmingly African American that the incident was
clearly motivated by her race.

While the Hearing Examiner does not question the
Complainant's sincerity, the Hearing Examiner finds that the confrontation was
not motivated by the Complainant's race, but by Langlois' frustration with what
he viewed as the Complainant's willful refusal to address serious personnel
problems and her insubordinate behavior in walking out of the meeting with him
and Frohling.

The record in this matter shows an increasingly
tense and dysfunctional office. It appears that the Complainant was feeling
anger and resentment towards both Frohling and Langlois, but was rebuffed by
Langlois' efforts to address her problems. This is typified by the Complainant's
reaction to the February 26, 1999 meeting in which she indicated she didn't want
to talk about it then. The Complainant's own antagonistic conduct in meetings
with the other Coordinators added to the problem. See generally exhibit G-11 (Langloisí
notes) for some of the problems. Fueling the fire of the eventual melt down was
the Complainant's reluctance to meet at lunch on March 5, 1999. When the
Complainant refused to continue the meeting with Langlois and Frohling, the
Hearing Examiner can accept that Langlois would have been angry and upset. The
record indicates that Langlois had been attempting to resolve problems raised by
the Complainant, but that it did not appear that the Complainant wanted to work
to resolve them and took no responsibility for any part of the problems.

When Langlois' professional demeanor exploded, he
focused his rage on what he saw to be a substantial part of the problem, the
Complainant's unwillingness to address the problems she had identified and to
some extent caused. His comments reflect this. They are not directed at the
Complainant's race, but rather are reflective of the Complainant's failure to
carry through to a resolution of the issues with Frohling and/or Langlois.
Though a not unreasonable reading of Langlois' comparison of the Complainant
with the clients could be because of racial identity, such a reading would be
superficial. When taken as a whole, the Hearing Examiner finds that Langlois'
comments, though profane, were directed at the Complainant's conduct, not her
skin color or heritage.:

The Hearing Examiner must conclude that despite
the Complainant's beliefs, the March 5, 1999 incident is no more a part of a
pattern of racial harassment than any of the earlier incidents. This finding
however, leads the Hearing Examiner to the most troubling aspects of the
complaint.

After the Complainant left the Respondent's
offices on March 5, 1999, she did not return until Tuesday, March 9, 1999. The
Complainant was scheduled to work on March 8, 1999 but called in sick. Though
she was briefly seen in the offices, she did not report to work.

Over the weekend of March 6 and 7, 1999, the
Complainant wrote a complaint of harassment under the Respondent's harassment
policies. She dated it March 8 and sent it to the Respondent's Milwaukee
offices. After filing the complaint, the Complainant left for a previously
scheduled vacation.

The complaint was received by the Respondent's
head of Human Resources, Amy Winkler. Winkler attempted to contact the
Complainant, but discovered that the Complainant was on vacation. Once the
Complainant returned from vacation, she set up a meeting with Winkler on March
19, 1999.

While the Complainant was on vacation, Winkler
and Diane Ellis met with and interviewed Frohling and Langlois. Ellis was a
Human Resources Manager with the Respondent in its office in Missouri.

When the Complainant returned from vacation, she
met with Winkler and Ellis. At that meeting, she was not asked about the basis
of her complaint or the various allegations of discrimination and harassment by
Langlois. Winkler asked the Complainant for a list of possible resolutions or
what she would like to happen. Though it took a couple of days, the Complainant
eventually sent Winkler a fax, on March 23 1999, containing additional
information about her complaint including a lengthy list of problems. Though the
list was lengthy and contained some specifics, Winkler decided that she did not
need to meet an additional time with the Complainant or to do any additional
investigation.

Subsequent to receiving the list from the
Complainant, Winkler and Kramer met with Langlois on March 23, 1999 to discuss
the resolution of the investigation and to propose a meeting with the
Complainant.

Winkler called the Complainant to explain that
the investigation was complete and to set up a meeting with Lockett, Winkler,
Langlois and the Complainant to move on. The Complainant expressed reluctance to
meet with Langlois. It was agreed that the Complainant would meet with Winkler
and Lockett and at that time consider meeting with Langlois.

The meeting was set for March 25. When the
Complainant met with Winkler and Lockett, she was told that the Respondent would
not fire or transfer Langlois. They would provide him with additional training
and Lockett would meet regularly with Langlois and the Complainant to resolve
any remaining issues. The Complainant was told that she needed to decide if she
was coming back to work. The Complainant felt pressured and confused. She did
not know whether she would be able to work with Langlois again. When she asked
for time to make her decision, she was told that the decision needed to be made
that morning. The Complainant went to her office and after no more than 30
minutes returned and agreed to stay.

The Complainant was still reluctant to meet with
Langlois. Winkler and Lockett prevailed upon the Complainant to meet to hear
Langlois' apology. Eventually, the Complainant acquiesced.

A brief meeting was held with Winkler, Lockett,
Langlois and the Complainant. Langlois expressed that he was sorry that the
Complainant had felt he was threatening and he hoped they could work together
again.

The Complainant was allowed to leave for the rest
of the day. Lockett and Langlois met to work on office needs.

The Complainant contends that the Respondent's
response to her complaint was wholly inadequate. The investigation was
incomplete and the eventual resolution did nothing to assure that there would
not be a continuation of the incidents leading to the complaint.

The Respondent asserts that it promptly responded
to the complaint. It states that it conducted a thorough investigation and took
reasonable action to assure that there would be no repetition of incidents like
those that preceded to the complaint.

The Hearing Examiner finds that this is one of
the worst examples of an investigation of a complaint of harassment possible. It
was incompetently run by an individual with virtually no training, did not
address the issues set forth in the complaint and did little to correct any
problem that existed or to prevent problems in the future.

The problems start with the individual who
conducted the investigation. Though Winkler managed the Human Resources office
in Milwaukee, she was strikingly unprepared to conduct an investigation into a
claim of harassment. At hearing, she testified that though she was sure she had
attended training where the subject of investigating a claim of discrimination
had been discussed, she could not provide any information about when, where or
how long the training had gone on. She could not bring to mind any specific
training that she had attended in this area nor could she account for any
reading she might have done. She was sure that the predecessor in her position
had provided her with training, but again she could not quantify that training
or indicate when or how it occurred.

Neither Winkler nor Lockett read the
Complainant's complaint as being one for racial harassment. In fact, Winkler
testified that she would treat any complaint of harassment, whether it be for an
illegal basis or not, in the same manner. While this adoption of the Rodney King
philosophy of "why can't we just get along together?" may sound good it hardly
represents a professional approach to the investigation of claims of harassment.

Winkler knew prior to receiving the Complainant's
complaint that the Complainant was an African American. The Complainant's
complaint makes frequent and specific reference to protections of the
Respondent's policy for "protected characteristics". With this in mind, Winkler
never made any determination of the basis or bases of the Complainant's
complaint. The record in this matter indicates that Winkler never even asked the
Complainant about the basis for her complaint. This failure of reasonable
investigative procedure set the tone for the rest of its failures.

It seems to the Hearing Examiner that one must
know of the basis of a complaint before one can take any action to correct the
allegations of the complaint or to prevent their reoccurrence in the future. It
is not necessary that a complaint use "magic words" to state a claim. Gentry
v. Export Packaging Co., 238 F.3d 842 (7th cir. 2001). Though in Gentry
the allegations of sexual harassment could have easily been read from the
complaint, the case still is a good example of the relaxed standards that should
be applied to internal complaints of harassment. In the present case
descriptions of potentially discriminatory conduct are present along with
specific claims of sex discrimination. It is noteworthy that none of the
Complainant's allegations of sex-based discrimination were investigated by the
Respondent either. Winkler seems to have been driven more by a desire to assure
a quiet workplace than to determine what happened, why it happened and how can
it be prevented in the future.

The second major failing of Winkler's
investigation is its focus on the events of March 5, 1999. Though this was
perhaps the most immediate manifestation of a problem, the March 8, 1999
complaint by itself raises a host of other issues. The Complainant's additional
list faxed to Winkler on March 23, 1999 gives additional issues into which
Winkler never looked

The Respondent indicates that Lockett was to look
into those additional concerns. However there was no time frame set for
Lockett's investigation and the record indicates that he never prepared or filed
any kind of a report concerning the additional issues. Winkler testified that
Lockett might have talked to her about some of those issues, but admitted that
there is no record of any such communication and that Lockett never filed any
written reports about his investigation. On this record, the Hearing Examiner
cannot determine if any issues other than the March 5, 1999 confrontation
between Langlois and the Complainant was ever investigated.

The next problem with the investigation is the
lack of contact with other witnesses. First, assuming that the March 5, 1999
incident was of paramount and exclusive interest, there is no indication that
Winkler, Ellis, Kramer or Lockett made any effort to identify and locate anyone
who might be able to provide more information about what actually happened. In
the notes of the first interview with the Complainant, there is an indication of
possibly two witnesses. It is clear that from the notes of the Complainant's
recollections that the witnesses might have been illusory. However, there is
absolutely no indication that Winkler or anyone else involved in the
investigation made any effort to identify those potential witnesses or to
contact them or to identify anyone else who may have seen or overheard any part
of the exchange between Langlois and the Complainant.

Putting aside the importance of the March 5, 1999
incident, the record is devoid of any indication of efforts on the part of the
Respondent to identify or find anyone who might be able to provide any
information about any of the other allegations in the complaint or in the follow
up list provided by the Complainant. Even Lockett does not appear to have
attempted to locate witnesses so as to determine the accuracy of the
Complainant's allegations. This failure to seek out additional perspectives on
the Complainant's complaints is further evidence of an interest on the
Respondent's part to simply sweep matters under the rug and return to work and
not to determine what actually had occurred so that future repetitions could be
avoided.

Winkler only addressed the allegations of the
Complainant about the March 5, 1999 incident in her investigation. Despite the
fact that the Complainant clearly referenced multiple allegations of
discrimination and harassment beyond those of the March 5, 1999 confrontation in
the March 8, 1999 complaint, Winkler made no effort to investigate those other
incidents. Nothing in Winkler's investigation file (exhibit G-13) shows a single
question about any of those additional allegations. When on March 23, 1999, the
Complainant sent Winkler an extensive list of additional issue/concerns instead
of the list of requested resolution items, Winkler did nothing to expand her
investigation.

The Respondent indicates that Lockett was to look
into those other areas. There is no memorialization of this charge to Lockett
and no written explanation to the Complainant about how her concerns were to be
addressed.

Even assuming that it might be appropriate to
triage the Complainant's allegations and delay investigation and remediation of
some issues, nothing in this record indicates that there was some process of
evaluation of the Complainant's allegations. Additionally, there is no
documentation of any investigation or steps taken to address the Complainant's
concerns. Both Winkler and Lockett admitted that there are no written reports by
Lockett of his efforts in furtherance of an investigation.

It should also be noted that Winkler's
investigation file contains no original statements of anyone other than the
Complainant. Winkler only includes her notes of the interviews of Frohling and
Langlois. Given Winkler's apparent predisposition not to investigate but to
smooth over the bumps in the Respondent's road, the accuracy of these notes must
be called into question. Without original statements from Frohling and Langlois
in their own words, it is impossible to judge to what extent, if any, their
interviews were directed by Winkler's presuppositions about the Complainant's
complaint. This calls into question, the adequacy of the investigation as a
whole.

During the investigation, the Complainant made it
clear to Winkler and Ellis that she felt traumatized by the event at the DRC.
She indicated that she just wanted to stay in her office. She didn't want to
meet Langlois for fear of another incident. These feelings of fear were
additionally, communicated to Winkler on March 24, 1999 when Winkler was trying
to set up a final meeting. The Complainant indicated that she was willing to
meet, but that she didn't want to meet with Langlois.

The Respondent took no steps to try to remedy the
Complainant's concerns. The Complainant was not directed to an Employee
Assistance Program or given any referral for counseling or other help.

Instead of considering the needs and concerns of
the Complainant, Winkler and Lockett, on March 25, 1999, first insisted that the
Complainant decide whether she would return to work or would terminate her
employment with the Respondent and second meet with Langlois to accept his
apology. The Complainant was given 15 to 30 minutes to decide her future after
having been told that Langlois would remain as her supervisor, that she would
have to work with Langlois or leave employment with the Respondent and that it
would all have to happen immediately.

The record does not show any consideration of
transferring either Langlois or the Complainant despite the Complainant's clear
statements that she doubted her ability to work with Langlois. It does not
reveal any discussion of steps that could be taken to re-integrate the
Complainant into Langlois' supervision.

The Respondent's failure to undertake, conduct
and complete an adequate investigation of the Complainant's March 8, 1999
complaint creates an interesting question of liability. It is clear that even
where the allegations of a complaint are demonstrated not to show discrimination
that an employer can still be held responsible for acts of retaliation triggered
by the complaint. The first question that comes to the mind of the Hearing
Examiner is whether an employer's failure to conduct a reasonable investigation
of a complaint of harassment or discrimination can be held liable per se for its
failure. The theory rests on the notion that there is a legal obligation on the
part of an employer to provide its employees with a workplace free of
discrimination and harassment. Meritor, supra. If it fails to determine
whether discrimination or illegal harassment has occurred, should the employer
not face liability for such a failure? To give an employer a "pass" on a
patently inadequate investigation does nothing to create an environment in which
employees will seek to protect there own rights through the employer's internal
complaint process. If employees are unwilling to complain because their
complaints will not be taken or acted upon seriously by the employer, a
workplace may become an incubator for discrimination and harassment. This would
seem to run contrary to the public policy stated and furthered by the Ellerth/Faragher
line of cases. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742
(1998), Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

Though the present case is one that cries out for
the recognition of such a claim, the Hearing Examiner is reluctant to rely upon
a novel approach. Extensive research failed to reveal any cases either
supporting such a theory or rejecting it. While the Hearing Examiner believes
that the public policy and structure of the ordinance are sufficiently broad to
support such a claim, there is no specific language that endorses such a theory.
However, at this time the Hearing Examiner declines to recognize this theory.

Rather, existing theories of liability are
adequate to find liability on the part of the Respondent. First, the Hearing
Examiner finds that the Respondent's failure to conduct any reasonable
investigation of the Complainant's complaints coupled with its resolution on
March 25, 1999 represent illegal retaliation within the meaning of the
ordinance. The ordinance prohibits any person from coercing, intimidating or
otherwise discriminating against any person for that person's exercise of rights
protected by the ordinance. In the present case, the Complainant opposed an
allegedly discriminatory practice by filing her complaint with the Respondent on
or about March 8, 1999. The Respondent's insistence on a decision about
continuing employment immediately on March 25, 1999 and insisting upon an
immediate meeting with Langlois on the same date without taking into account the
Complainant expressed concerns for her safety had the effect of coercing and
intimidating the Complainant.

The Respondent's actions are both temporally
connected with the complaint as well as being transactionally connected. The
Respondent clearly either wanted the Complainant to be "back in the fold" of the
Respondent's employment or to be gone. Its callous disregard of the Complainant
throughout the investigation and on March 25, 1999 demonstrates its unhappiness
with the Complainant for her exercise of her rights.

The effect of the Respondent's retaliation was to
poison the workplace towards the Complainant. Equally, the Complainant's view of
her workplace was poisoned so that it became increasingly difficult for the
Complainant to meet her responsibilities at work and to accomplish that for
which she was hired. Every set back, slight or problem took on the appearance of
discrimination or retaliation.

It is not the intent of the Hearing Examiner to
create a system in which every adverse outcome of an investigation gives rise to
a claim of retaliation. Such determinations can only be made on a case-by-case
basis. However investigations of complaints must be performed in a manner
reasonably calculated to come to a good faith determination of each claim and a
good faith resolution of those claims.

The second possible theory of liability for the
Respondent's failure to conduct an investigation that would reasonably correct
any discrimination found and prevent it from occurring or reoccurring in the
future rests simply on discrimination. In the shortest form possible the
elements of this claim are: that the Complainant, an African American is a
member of the protected class race; that she suffered an adverse employment
action by failing to have her complaint reasonably investigated and was
subsequently placed in a workplace in which she felt neither physically nor
emotionally safe which made it unusually difficult for her to perform the duties
of her job and; that there is a reasonable connection between the Complainant's
race and the adverse action.

The only element of such a race claim that needs
additional discussion at this time is that of the causal link between the
Complainant's race and the adverse action experienced by the Complainant. On
this record there is no comparative data to judge the existence of a causal
connection. In other words, there are no examples of similarly situated White
employees who complained about something and how their complaints were handled.
Equally, there were no racially explicit words used during the investigation to
show animus. However, Winkler knew before the filing of the complaint that the
Complainant was an African American. Since Langlois is White, the Respondent's
resolution coupled with a wholly inadequate investigation of the Complainant's
allegations against Langlois raise an inference that race motivated the
Respondent's actions. Given the racial nature of the Complainant's complaints
and the lack of any action that comes close to being disciplinary taken against
Langlois adds to the weight of the inference. As noted earlier, the Hearing
Examiner ascribes no racially discriminatory motive to Langlois especially in
connection with the March 5, 1999 confrontation, but his conduct during that
incident was sufficiently outrageous as a supervisor to warrant some formal
discipline. The fact that Langlois only received some additional supervision is
an indication of his favored status.

It is true that the Respondent employs a majority
of African American employees, however that was not the case in the DRC. The
racial composition of the rest of the Respondent's workplaces does not overcome
the inference that the Complainant's race was a motivating factor in her
treatment.

Before moving to the topic of damages for the
Respondent's retaliation or discrimination, the Hearing Examiner will address
the Complainant's remaining claims of discrimination and retaliation. These
claims represent the third and final major area of the Complainant's complaint.

The Complainant asserts that subsequent to her
return to work, the harassment and discrimination continued and increased. She
attributes the adverse circumstances to Langlois and to retaliation on his part.
Much of the harassment and discrimination identified by the Complainant appears
to be a continuation of things of which the Complainant complained prior to
March, 1999, greater scrutiny of her work, more work than others, complaints
about assignments to the work van. The Complainant asserts that negative
stereotyping continued by Langlois. The Complainant adds that Langlois held
staff meetings with other Coordinators and excluded her. As a result of this
exclusion, the Complainant was not always current on the forms used in the
office. Finally, the Complainant accuses Langlois of setting a fire in her car
in August of 1999 and putting a threatening note on her windshield in September
of 1999 and then not appropriately reporting the incidents to Lockett or the
headquarters office.

With respect to claims that the workplace had
become more hostile towards the Complainant by isolating and shunning the
Complainant, the record lacks any evidence other than the Complainant's
allegation. While one of the consequences of the Respondent's inadequate
investigation and resolution of the Complainant's complaint was likely a lack of
certainty about how to deal with each other in the workplace, there is nothing
inherent in the situation that makes the Complainant's allegation more credible
than Langlois' and Lockett's denial. Absent some corroborative evidence, the
Hearing Examiner cannot find that the Complainant was treated as an outcast and
isolated by others on staff.

Similarly the Complainant asserts that negative
language about the clients and unflattering comparisons between herself and the
staff continued and increased. However, there is again no corroboration of the
Complainant's allegations. Without some evidence supporting the allegation, the
Complainant, on this record, fails to carry her burden of proof.

The Complainant asserts, as she did earlier, both
that she was overburdened with work and that some of her duties were removed.
Shortly after beginning as Langloisí supervisor, Lockett reviewed the workloads
of the various Coordinators and that of the Complainant. He determined that the
Complainant and Anderson, a White female, had about the same number of cases
while Frohling, another White female, had a substantially smaller caseload. Once
this discrepancy was brought to Langlois by Lockett, the caseload was adjusted
to more equally balance the levels. The resulting reduction to the Complainant
was only temporary as all Coordinators caseloads were increased again when
Anderson resigned in the late spring or early summer.

The Complainant contends that when Anderson left,
she (the Complainant) was assigned Anderson's entire caseload or, at least, the
majority of it. While the Complainant may have believed that she was the
recipient of the large majority of Anderson's cases, the Complainant admits that
she did not know what the other Coordinators received or had previously
scheduled. On this record, the Hearing Examiner cannot determine that the
Complainant was treated adversely to the other coworkers with respect to her
race or her filing of a complaint. In this regard, it must be noted that when
Lockett audited the caseloads, he found that the Complainant and Anderson had
just about the same caseload. As Anderson was a White female who had not
complained of discrimination, her treatment similar to that of the Complainant
tends to disprove any allegation of discrimination or retaliation. It appears
that either Frohling was particularly adept at avoiding work or held some
personal advantage in Langlois' eyes. However, either explanation does not
implicate illegal discrimination or retaliation.

Related to the Complainant's claims about a
greater caseload is her allegation that she was assigned a greater number of
"difficult" or high-risk clients. Lockett observed at Hearing that virtually all
of the Respondent's clients had a lot of needs. Almost all of the clients had
some history of violence. The Complainant does not define or describe what made
her clients particularly difficult or high-risk, or why the other Coordinatorsí
clients were less difficult. On this record, the Hearing Examiner can make no
determination that the Complainant was being treated less favorably than the
other Coordinators at all or for a discriminatory or retaliatory reason.

The Complainant contends that Langlois
specifically informed some clients that the Complainant had made reports that
led to the clients return to jail. The Complainant alleges that this placed the
Complainant's safety at risk. The Hearing Examiner is somewhat confused about
this allegation. It was the job of the Coordinators to report the conduct of the
clients and it was acknowledged by all that those reports sometimes returned
clients to prison. Even if Langlois had specifically identified the Complainant
as the Coordinator providing information, it is not clear how this would be
different than normal operation of the DRC. There is no evidence in the record
from which the Hearing Examiner could conclude that the Complainant was
attempting to cultivate a reputation as a Coordinator who did not return clients
to jail. This might have been contrary to the requirements of the Coordinator
position if she had. The Hearing Examiner can find no evidence of an adverse
action with respect to this allegation.

In her post-hearing brief the Complainant asserts
that Langlois failed to report three attacks on her person or possession and
believes that Langlois may have been responsible for two of the incidents. The
three incidents are: a threat made by a custodian against the Complainant and
Bent with a drill; a fire set to possessions in the Complainant's car and an
allegedly threatening note left on the Complainant's windshield.

With respect to the "drill" incident, the
Complainant must be mistaken. The evidence in the record establishes that this
incident occurred at the end of 1998. It or its reporting could not have had
anything to do with retaliation.

The incident of the fire set in the Complainant's
car occurred in August of 1999. At the time of the incident, Langlois seems to
have been of help to the Complainant. He stood with her and helped the police to
determine what had happened. The police had to ask Langlois to give them the
opportunity to interview the Complainant. At no time did the Complainant tell
the police that she suspected Langlois to have had any connection with the fire.
The only person identified by the Complainant as a possible suspect was the
custodian responsible for the drill incident in 1998.

It is acknowledged that Langlois did not report
the fire incident to Lockett or to the Respondent's headquarters. Langlois was
later reprimanded by Lockett for this failure. Langlois testified that since the
police had been called and were investigating the incident that he need not
further report it. It is also agreed that he had asked/directed the Complainant
to file an Incident Report. That was apparently not done.

At hearing, the Complainant testified that she
believed Langlois had something to do with the fire. If Langlois had actually
set the fire, it would clearly support the Complainant's claim of retaliation.
However there is no evidence at all of Langlois' involvement. The best one can
say is that perhaps Langlois' assistance provided to the Complainant at the time
somehow was an effort to mask his involvement. The Hearing Examiner will not
entertain any speculation along this line absent some corroborative evidence.
There is no such evidence in this record.

The final incident involves a note including a
pager number left on the Complainant's windshield. There is nothing in the
record to demonstrate that the note itself contained any credible threat made
against the Complainant or even to whom the pager number belonged. Though the
Complainant believes that Langlois was responsible for the note, there is no
evidence at all of his involvement. Langlois was later reprimanded by Lockett
for his (Langlois) failure to report this incident too.

To the extent that the Complainant truly believes
that Langlois had some involvement in either incident, it is a reflection of the
deterioration in the Complainant's confidence in Langlois and the Respondent
engendered by the March 5, 1999 incident and the Respondent's investigation and
response. However, there is nothing in the record to convince the Hearing
Examiner that Langlois or anyone else connected with the Respondent had anything
to do with the car fire or the note left on the Complainant's windshield.

There is one additional incident presented by the
Complainant as demonstrating retaliation on the part of Langlois and the
Respondent. At hearing, Lockett indicated that he looked into an allegation that
Langlois had referred to the clients as "monkeys" or "apes" in a meeting of the
staff. This is not an incident ever reported by the Complainant at any time
during this process. Lockett was unable to identify when the incident had
allegedly occurred. When Lockett looked into the incident, Langlois denied it.
Lockett did not believe Langlois' denial. The problem with including this as
part of the Complainant's complaint is that there is no point of reference for
its occurrence and no way to determine whether it represents a misstatement of
an earlier incident or an entirely new and previously undisclosed one. As such,
the Hearing Examiner cannot find that it forms the basis of any discrimination
or retaliation.

At hearing, Lockett testified that he believed
Langlois to have retaliated against the Complainant in one specific manner.
Subsequent to the Complainant's leaving on her medical leave, Langlois was upset
and contended that she had left her files in a mess and her office in shambles.
It is not clear how this outburst might be retaliatory or how it adversely
affected the Complainant since she was already on leave.

The final issue to be resolved by the Hearing
Examiner is how the Complainant may be made whole for the Respondentís act of
discrimination or retaliation. The Ordinance requires the Commission to adopt a
ďmake wholeĒ remedy should it find a violation of the Ordinance. This ďmake
wholeĒ remedy is intended to return the Complainant to the condition in which
she would find herself had the Respondentís discrimination not occurred.

The Hearing Examiner first turns to the issue of
back pay. The Complainant requests a complete award of back pay from October 8,
1999 to the present. Her back pay would be reduced by those wages or other
employment remuneration that she has received since receiving her last pay from
the Respondent. Unfortunately, the record does not support the Complainantís
request.

The first question arises from whether the
Complainantís medical leave, commencing on October 8, 1999, was required as a
result of a violation of the Ordinance by the Respondent. The Respondent has all
along denied any violation of the Ordinance that might lead to any award of
damages. Specifically, the Respondent notes that the reasons given for the
Complainantís medical leave by the Complainant herself are mostly related to
actions outside of the control of the Respondent. The Respondent also argues
that to the extent that the Complainantís medical leave was triggered in part by
the March 5, 1999 incident, that it is unreasonable for the Complainant to have
taken six (6) months to decide that she needed to be on leave. While the Hearing
Examiner agrees that the lapse of time from March 25 (the triggering date for
the Respondentís retaliation in the view of the Hearing Examiner) until the
Complainantís taking of medical leave on October 8, 1999, is lengthy, the record
supports the conclusion that the leave was appropriate. The Respondentís action
in retaliating against the Complainant created a workplace where the Complainant
continued to feel uncomfortable and doubted each action of her co-workers and
her supervisor. This unrest exacerbated existing medical conditions that came to
a head with the incidents of August and September 1999. Though it is clear to
the Hearing Examiner that the Respondent was not to blame in any way for those
incidents, the Complainantís reaction to them was entirely foreseeable as a
result of the Respondentís retaliatory or discriminatory conduct in March of
1999. The accumulation of stress and tension resulted in the Complainantís need
for medical leave.

The next question for the Hearing Examiner is
whether the Complainantís employment with the Respondent terminated as a result
of the Complainantís conduct on February 17, 2000, or whether she involuntarily
terminated her employment through a constructive discharge on April 21, 2000. On
this record, the Hearing Examiner must conclude that the Complainantís own
conduct resulted in her termination by the Respondent on February 17, 2000.

The Complainant denies having any knowledge of
the Respondentís requests, even demands, for medical information in January and
February of 2000. The record is clear that the Respondent communicated these
needs to the Complainantís then attorney, Jason Studinsky. Whether Studinsky
relayed those requests or demands to the Complainant is not clear on this
record. However, to the extent that Studinsky was representing the Complainant
and was apparently engaged in settlement negotiations on her behalf, he was
acting as her agent. The Complainant cannot simply wash her hands of her
responsibilities by employment of an attorney to act on her behalf.

The Respondent reasonably wished to fill the
Complainantís position if she was unwilling or unable to return to employment
with the Respondent. The clear ultimatum, along with a rational explanation for
its need, was reasonable on the Respondentís part. When the Complainant failed
to respond in any meaningful way to the Respondentís legitimate request for
either documentation of her need for continuing medical leave or her ability to
return, it took the reasonable action of terminating the Complainantís
employment.

The Complainant could have returned as of
February 17, 2000. It is suggested in the record by the notes in the
Complainantís medical record that she had decided to work in connection with her
husbandís office and with her husbandís indication that he was willing to enter
into a contract with the Respondent whereby the Complainant would reassume her
duties and pay once Langlois had left. The Complainantís contention that Thomas
Wex had extended her leave and ultimately recorded that she not return to
employment with the Respondent runs contrary to other credible evidence in the
record.

This fixes the Respondentís liability for back
pay from the period October 8 to February 17, 2000. The Complainant, while in
the employ of the Respondent, was paid approximately twenty-five thousand
dollars ($25,000) per year or two thousand and eighty-four dollars ($2,084) per
month. The period of time for which the Complainant was not being paid by the
Respondent was slightly over four (4) months and one (1) week. The Hearing
Examiner took that period of time for the Complainantís back pay times twenty
thousand eighty-four dollars ($20,084) to arrive at the same amount indicated in
the order.

On this record, given the Hearing Examinerís
reasoning, the issue of mitigation does not arise. A failure to mitigate damages
must be raised by the Respondent. The Respondent does not present any
information or evidence that the Complainant was able to return to work or
failed to return to work appropriately during the period from October 8, 1999
through February or March of 2000. Accordingly, the Hearing Examiner makes no
findings with respect to this matter.

In order to make the Complainant whole, the
Complainant must receive prejudgment interest on the wages to which she is
otherwise entitled. She has done without the ability to use those funds during
the intervening period and prejudgment interest would return her to her economic
position as it would have been absent the Respondentís
discrimination/retaliation.

The Hearing Examiner now turns to the issue of
emotional distress damages. Awards in connection with such injuries are always
somewhat speculative. However, it is well-recognized that the finder of fact has
some latitude and discretion in fashioning such an award. While the Hearing
Examiner is convinced that for some period of time, the Complainantís emotional
injuries were intense, he is not convinced that the record indicates that they
were particularly long lasting or solely attributable to the actions of the
Respondent. As the Respondent notes in its brief and reply briefs, much of the
subject of the Complainantís nightmares involve flashbacks to the drill incident
and the fire set in the Complainantís car. Neither of these incidents can be
attributed to the Respondent. While the Respondentís callous disregard of the
Complainantís complaints of March 8 and March 23, and the unfeeling way in which
the Respondent resolved the Complainantís complaint created an atmosphere of
suspicion for the Complainant at the DRC, it appears that once removed from the
employment setting, she was able to recover her emotional stability fairly
quickly. Had she been the emotional basket case described in the Complainantís
briefs, it seems unlikely that her husband would have offered her services as
part of a contract proposal in early December of 1999. Similarly, by
mid-February, the Complainant was already making plans to join her husband in
his officeís work and not to seek employment elsewhere.

The Commissionís largest award of emotional
distress damages was in the case of Leatherberry v. GTE Directory Sales
Company, MEOC Case No. No. 21124 (Comm. Dec. 4/14/93, Ex. Dec. 1/5/93).
There, the Commission awarded the Complainant twenty-five thousand dollars
($25,000) for her emotional distress. In that case, the Complainant had been the
recipient of specific racial and ethnic slurs from her supervisor and had a
promising career in a large corporation eliminated by abuse of at least two (2)
corporate managers. While the Complainant in that case did not present the same
type of medical evidence presented in the current case, the Complainantís
testimony was corroborated by her husband and others. Here, the Complainantís
testimony, though adequate to some degree to establish a claim for damages,
stands as uncorroborated. Without some additional corroboration, the Hearing
Examiner might be viewed as impermissibly speculating instead of exercising his
reasonable discretion.

The Hearing Examiner believes that the level of
distress and medical intervention needed by the Complainant appears closer to
that of the Complainant in Laitainen-Schultz v. The Laser Center, MEOC
Case No. 19982001 (Ex. Dec. 7/1/2003). Both needed some attention for their
symptoms, but did not necessarily experience the same level of loss as did the
Complainant in Leatherberry.

There is no question that the Complainant is
entitled to the payment of her costs and fees incurred in connection with
bringing this matter. It is longstanding case law that a prevailing Complainant
is entitled to payment of their reasonable costs and fees, including a
reasonable attorneyís fee in order to assist with making them whole. As the
Ordinance, along with most civil rights statutes, provides for a private
attorney general theory to assure enforcement of the Ordinance, not to award a
prevailing Complainant her costs and fees would actually deprive the Complainant
of the benefits of her enforcement activity.